State v. Lindeman

• Decision Date: 05 April 1934
• Docket Number: Cr. 112
• Citation: 254 N.W. 276,64 N.D. 518
• Court: North Dakota Supreme Court

254 N.W. 276

64 N.D. 518

STATE OF NORTH DAKOTA, Respondent, v. HERBERT G. LINDEMAN, Appellant

No. Cr. 112

Supreme Court of North Dakota

April 5, 1934

Appeal from the District Court of Grand Forks County, Holt J.

Reversed and new trial granted.

Chas A. Lyche, for appellant.

Permitting papers, documents and exhibits unfavorable to the accused which have not been produced as evidence in the case, to be taken by the jury into their room and read and considered by them, during their deliberations, is error. People v. Thornton, 74 Cal. 482, 16 P. 244; Territory v. Jones, 6 Dak. 85, 50 N.W. 528; State v. Clark, 34 Kan. 289, 8 P. 528; State v. Lantz, 23 Kan. 728, 33 Am. Rep. 215; State v. Baker, 23 Or. 441, 32 P. 161; State v. Hartmann, 46 Wis. 248, 50 N.W. 193; McCoy v. State, 78 Ga. 490, 3 S.E. 768; Chester v. State, 23 Tex.App. 577, 5 S.W. 125.

Whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs, except when a contrary intention plainly appears. Comp. Laws 1913, § 7239; Grunow v. Simonitsch, 21 N.D. 277, 130 N.W. 835; State ex rel. Dillman v. Weide (S.D.) 135 N.W. 696; Sox v. Miracle, 35 N.D. 458, 160 N.W. 716.

An "order" is a direction in writing, granted by a court or judge, requiring or authorizing some act to be done. Burrill's Law Dict. 29 Cyc. 1514; Dahlstrom v. Portland Min. Co. 12 Idaho 87, 85 P. 916; DeLendrecie v. Peck, 1 N.D. 422, 48 N.W. 322; Nellis v. Justices' Ct. 20 Cal.App. 394, 129 P. 472; State v. Baker, 35 Nev. 300, 129 P. 452.

Where an order is granted upon notice or motion to the adverse party, it does not become effective for any purpose until entered. 29 Cyc. 1515.

The usual statutory definition is in words or substance that every direction of a court or judge made or entered in writing and not included in a judgment is an order. 42 C.J. 464.

The necessity of an order's being in writing may be implied from the phraseology of the statutes defining an order as a direction of a court or judge made or entered "in writing," or requiring an order to be "signed," or requiring it to be "entered" of record. 42 C.J. 526; Fast v. Steele, 127 Cal. 202, 59 P. 585; State v. Thresher, 77 Conn. 70, 58 A. 460.

Mere oral decision is of no effect without an order making it a record. Smith v. Spalding, 26 N.Y. 516.

An order not made on the docket or filed with the clerk, but retained in possession and under the control of a party to the suit or his attorneys, is not operative as an order. United States L. Ins. Co. v. Shattuck, 159 Ill. 610, 43 N.E. 389.

In chancery suits all orders made on written motions must be entered of record. Baker v. Hurst, 205 Ill.App. 39.

Mandamus is the proper remedy to compel a judge to enter an order when he improperly refuses to do so. People v. Manhattan R. Co. 9 Abb. N.C. 440.

P.O. Sathre, Attorney General, and W.B. Arnold, State's Attorney, for respondent.

The failure of the county judge to sign an order does not have the effect to nullify or destroy the decision which was actually made. Baker v. Baker (Wis.) 8 N.W. 289; 289; United States v. Terry, 41 F. 771; Miller v. Evans, 115 Iowa 101, 88 N.W. 198; Smith v. Pecos Valley etc. R.R. Co. (Tex.) 95 S.W. 11.

The district court has no jurisdiction to reopen a case after the time for appeal thereon has expired. State v. Hagen, 54 N.D. 136, 208 N.W. 947; State v. Krueger, 57 N.D. 636, 223 N.W. 583.

Burke, J. Burr, Ch. J., and Nuessle, Christianson and Moellring, JJ., concur.

OPINION

BURKE

On the 22nd day of June, 1933, the defendant was convicted of the crime of engaging in the liquor traffic. He promptly appealed from the judgment and also made a motion for a new trial, which motion came on for hearing on the 6th day of July, 1933, at which time the arguments and remarks of the court were taken down in shorthand by the court stenographer and which included an oral statement of the court denying the motion for a new trial, which stenographic notes were filed with the clerk of court, but were not transcribed until the 24th day of October, 1933. Thereafter, the defendant applied to the court for an order to show cause why the said notes should not be transcribed and a proper order filed in the office of the clerk of court, so that the time for the running of the statute on appeal might be fixed and why the defendant should not have sixty days from the time of the filing of said order in which to take an appeal therefrom. This motion was also denied and the first question in the case is, was the lengthy oral statement made by the court in the stenographic record in the proceedings on motion for a new trial such an order that an appeal must be taken therefrom within sixty days after the same was orally made? The minutes of the court during the trial as entered by the clerk are in the record and there is no mention of any such order in the minutes and there was no record of such order except in the shorthand notes of the court stenographer on file.

Section 7939, Compiled Laws 1913, reads as follows: "Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order."

This section is identical with § 7194 of the Idaho Code and in the case of Spivey v. District Ct. 37 Idaho 774, 219 P. 203, the court said: "It is thus evident that an order must be in writing. It may, however, be made and filed with the clerk, in which event it must be signed by the judge, or it may be entered in writing in the minutes or journal of the court. Perkins v. Loux, 14 Idaho 607, 95 P. 694, 696."

In the case of Goade v. Gossett, 35 Idaho 84, 204 P. 670, the trial judge had under consideration a motion for a new trial. He wrote a letter in which, after reciting the submission of the motion to the court and its consideration by him, announced the decision of the court in these words "Motion for new trial will therefore be overruled." The Idaho court cited and quoted the definition of an order and then said: "Applying this definition, it would seem that there is no room for the contention of the appellant that the letter of February 4 was an order from which an appeal could be taken." The appeal made on such alleged order was dismissed.

California has the same statute and in 18 Cal. Jur. 662, the rule is stated as follows: "Orders of a court or judge must be made or entered in writing. Care should be exercised to see that the orders procured are entered in such terms as to express with precision the objects to be attained."

State ex rel. Tibbals v. District Ct. 42 Wyo. 214, 292 P. 897, 71 A.L.R. 993, at page 998 the court said: "The court, it is true, speaks only through its records (State ex rel. Chapman v. Urschel, 104 Ohio St. 172, 135 N.E. 630) and the provisions of the statute that an order of court must be placed of record must be complied with, and will, in the proper cases, as on appeal, be applied and enforced."

20 R.C.L. 512 states the rule as follows: "There is a clear distinction between the making of an order and its entry. The order is made when the court announces it. It is entered when it is placed of record by the clerk. The general rule would seem to be that for most purposes some entry or record of an order is necessary to its completion." The foregoing is quoted with approval by the Michigan court in Freeman v. Wayne Probate Judge, 230 Mich. 455, 203 N.W. 158.

It is the contention of respondent that the statutory definition applies only to orders made in civil actions. It is true that the definition of an order is found in the Code of Civil Procedure, but it is a general definition and states specifically that an order is "Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order." Doubtless an oral order may be made in some cases as in the case of United States v. Terry (D.C.) 41 F. 771, where the court ordered the marshal to remove a disorderly person from the court room. This was a case that called for summary action. The offending party was disturbing the proceedings in court by loud and insulting language addressed to the presiding justice.

It is clear that such an important order as that of granting or refusing a new trial should be made a part of the written record and an oral order denying or granting a new trial is not complete until it is reduced to writing, signed by the judge and filed with the clerk of court, or if the order is made in open court, § 10,907, Compiled Laws 1913, makes it the duty of the clerk to enter carefully and correctly in the minutes of such court every ruling or decision of the court upon any matter, by § 10,905 and subd. 1 and 2 of § 10,906 declared to be deemed excepted to and a certified copy of any or all such entries shall be and become a part of the record of said action. If the order is made in open court it is not complete and no part of the record until it is entered in the minutes of the court as provided by § 10,907. Unless it is reduced to writing, signed by the judge and filed with the clerk or entered by the clerk in the minutes of the court as provided by law, there is nothing to appeal from.

The real question in this case, however, can be determined on the appeal from the judgment. During the trial the state offered in evidence a cardboard paper box containing intoxicating liquors, labeled "This and contents was found by us on the 26th day of May, 1933, at the house in the city of Grand Forks, North Dakota and occupied by .

Dated May 26, 1933.

(Signed) J. M. Lund"

In the lower corner of said exhibit is the notation "6-20-33,

(Signed) C. H. Heen, Clk."

The said box contained 24 compartments in which were six full half pints and one full pint...