State v. Hagen

• Decision Date: 03 May 1926
• Docket Number: 5059
• Court: North Dakota Supreme Court

208 N.W. 947

54 N.D. 136

STATE OF NORTH DAKOTA, Respondent, v. HALVOR J. HAGEN, Appellant

No. 5059

Supreme Court of North Dakota

May 3, 1926

From an order of the District Court of Grand Forks County Kneeshaw, J., denying motion for a new trial, defendant appeals.

Affirmed.

Usher L. Burdick, for appellant.

The first ground of the motion is based upon the assumption that the time for appealing from an order granting or refusing a new trial expires when the time for appealing from a judgment has expired. This is erroneous. The remedy afforded by an appeal from a judgment and the remedy by appeal from an order granting or refusing a new trial are wholly independent remedies. A party aggrieved may invoke one or the other, or both, at his election, provided only he does so within the time and in the manner provided by statute. The period of time in which these independent rights may be exercised are fixed by the statute, and are in no respect dependent one upon the other. King v. Hanson, 13 N.D. 85; Williams v. Fairmount School Dist. 21 N.D. 198.

Geo. E Shafer and Geo. A. Bangs, for respondent.

Whatever may have been the right of the trial court at common law to grant a new trial, there can be no question but that the authority here is purely statutory. The statutes measure the power and no power exists unless granted by the statute. 4 Cooley's Bl. Com. 362-390.

New trial is grantable only on statutory grounds and not for loss of stenographer's notes, death of stenographer, etc Higgins v. Rued, 30 N.D. 551, 153 N.W. 389; Dubb v. N. P. R. Co. 47 N.D. 210, 181 N.W. 606.

The right to a new trial is purely statutory. 16 C. J. 1117; State v. B--, 173 Wis. 608, 182 N.W. 474; People v. Court of General Sessions, 98 N.Y.S. 557, 185 N.Y. 504, 78 N.E. 149.

The statement of case can be readily perfected without the aid of the reporter's notes; in truth and in theory they are of no greater value than notes made by anyone else. Golden Terra Min. Co. v. Smith, 2 Dak. 377, 11 N.W. 98; Lidgerwood Mfg. Co. v. Rogers, 4 N.Y.S. 716.

There is no law or rule that requires the use of stenographer's notes in the preparation of the appeal. S. P. L. Co. v. Martin, 118 S.C. 319, 110 S.E. 804.

BURR, Dist. J. CHRISTIANSON, Ch. J., and NUESSLE, and BIRDZELL, JJ., and PUGH, Dist. J., concur. JOHNSON and BURKE, JJ., did not participate; Honorable A. G. BURR, Judge of the Second Judicial District and Honorable THOMAS H. PUGH, Judge of the Sixth Judicial District, sitting in their stead.

OPINION

BURR, Dist. J.

This is an appeal from the order of the district court, denying defendant's motion for a new trial. Briefly, the facts necessary for a determination of the issues involved are as follows:

The defendant was found guilty of receiving deposits in an insolvent bank, and on June 2, 1924, judgment was pronounced. On the same day an appeal was taken and as no statement of the case was settled the state made a motion in this court, on May 5, 1925, to dismiss the appeal. Defendant appeared on said motion in opposition thereto, and urged that on or about February 2, 1925, the stenographic notes of the testimony, taken by the court reporter at the time of the trial, had been stolen, after about two thirds had been transcribed, and at the same time moved this court for a new trial because of the loss of these notes. This court denied the motion to dismiss the appeal as well as the motion for the new trial, the order being entered on or about June 14, 1925. On July 8, 1925, the defendant served notice of this motion for a new trial in the district court, setting forth as grounds for the new trial, among other things:

"That the defendant asks for a new trial solely upon the ground that the transcript of the evidence is necessary from which to make a statement of the case and specifications of error and that by reason of the loss of the same the defendant has been precluded from perfecting his appeal. The defendant does not make this application for a new trial resting strictly upon the statutory grounds mentioned in § 10,917, Compiled Laws of North Dakota, but asserts that in addition to said grounds therein mentioned the rule has been laid down in criminal cases, in this state by inference and in others having similar statutes by direct decisions, that the loss of the stenographic notes, through no fault of the defendant or his attorneys, is held to be a ground for a new trial in addition to the grounds specified by statute." Other portions of the motion are either amplifications of this paragraph or explanatory of the same.

The district court denied this motion for a new trial, on July 14, 1925, and in the memorandum opinion accompanying the order sets forth his reason for denying the motion, which reasons are urged by the state in this court in opposition to the appeal. The trial judge came to the conclusion, 1st, that the ground urged for a new trial is not one of the grounds enumerated in § 10,917 of the Code as grounds for a new trial, and that said section is exclusive in its nature; and, 2nd, that owing to the lapse of time, more than one year having passed since judgment was pronounced, the court had no power to grant a new trial. From this order denying the new trial this appeal is taken.

Section 10,917 of the Code sets forth seven grounds, or causes for a new trial and says: "When a verdict has been rendered against the defendant, the court in which the trial was had may, upon his application, grant a new trial in the following cases only" and then sets out the seven grounds. None of these grounds can, by any stretch of the imagination, be said to include loss of the stenographic notes. The defendant recognizes this; but claims this section is not exclusive. The issue involved has not been before us in a criminal case but has been passed upon by this court in civil procedure. In Higgins v. Rued, 30 N.D. 551, 153 N.W. 389, this court laid down the rule that "the failure or inability of a court reporter to furnish the defeated party with a transcript of the evidence is no ground for a new trial" basing the decision upon the fact that at that time "the causes for which a new trial may be granted are specified in § 7660, Compiled Laws 1913, and these causes are exclusive." Section 7660 did not make "failure or inability of a court reporter to furnish . . . a transcript of the evidence" one of the grounds for a new trial. In this respect it coincided with § 10,917 of the Code--the section under consideration. The legislature, later, amended § 7660 in order to include "loss of notes" but made no amendment of § 10,917. The principle involved is the same, and the rule is the same. New trials are governed by statute; they are the creatures of statute, and the statute is the exclusive source of power for the district court. This view has the approval of almost all jurisdictions. In People v. Amer, 151 Cal. 303, 90 P. 698, the court was required to construe a statute which provided new trials in criminal cases could be granted only on grounds specified therein, and held this was exclusive of other grounds. This was an embezzlement case, where the district court granted a new trial because of reprehensible conduct on the part of prosecuting officers, but not because of any ruling of the court thereon. The supreme court held that misconduct of the...