Stormon v. District Court of Pierce County

• Decision Date: 02 August 1949
• Docket Number: 7147.
• Citation: 38 N.W.2d 785,76 N.D. 713
• Court: North Dakota Supreme Court

38 N.W.2d 785

76 N.D. 713

STORMON v. DISTRICT COURT OF PIERCE COUNTY et al.

No. 7147.

Supreme Court of North Dakota

August 2, 1949

Rehearing Denied Aug. 30, 1949.

Syllabus by the Court.

1. The power of superintending control vested in the Supreme Court by Section 86 of the North Dakota Constitution is a broad power, the limits of which are not precisely defined by constitution, statute or precedent, but are to be determined by the controlling court through the exercise of sound judicial discretion guided by the fact that its primary jurisdiction is appellate while superintending control is an extraordinary power which will be exercised in behalf of a litigant only under conditions that are tantamount to a denial of justice.

2. An order denying a motion for judgment notwithstanding the verdict is not appealable but is reviewable on an appeal from the judgment.

3. Where the trial court has denied a motion for judgment notwithstanding the disagreement of the jury and no emergency exists and no injury is apparent other than the inconvenience and expense of another trial the Supreme Court will not exercise its power of superintending control to review the action of the trial court which is not appealable but is reviewable upon appeal from a final judgment and there is no reasonable certainty that action by act controlling court would expedite the termination of the litigation.

Nelson & Heringer, Rugby, Clyde Duffy, Devils Lake, and J Howard Stormon, Rolla, for plaintiff.

C A. Waldron and Bruce Van Sickle, Minot, for defendants.

MORRIS, Judge.

The plaintiff and proponent in the court below who is the petitioner herein seeks to have this court exercise its superintending control through an appropriate writ directing the trial court to determine upon its merits a motion by the proponent for judgment notwithstanding the disagreement of the jury.

This controversy develops from the following facts. The proponent filed a will for probate in the County Court of Pierce County. Contestants filed objections to the probate. After the contest was tried the county court admitted the will to probate. The contestants appealed to the district court and demanded a trial by jury. Upon the trial in the district court the jury disagreed and was discharged by the court. The proponent had made a motion for a directed verdict at the close of the contestants' evidence which was renewed at the close of all the evidence in the case. Both motions were denied. After the jury was discharged the proponent made a motion for a judgment notwithstanding the disagreement of the jury, based upon all the grounds set forth in the motions for a directed verdict and upon further grounds that had been specified in objections made before the introduction of any evidence in the case.

The contestants took the position that the trial court had no power to entertain a motion for judgment notwithstanding the disagreement of the jury, and cited Knorr v. Velva Supply & Machine Co., 60 N.D. 449, 235 N.W. 149, and Chapter 220 S.L.N.D.1945, being Section 28-1509, 1947 Supplement to the North Dakota Revised Code of 1943. The proponents cited Bratvold v. Lalum, 68 N.D. 534, 282 N.W. 514.

After hearing arguments on the motion the trial court filed a memorandum opinion in which he reached the following conclusion. 'It follows that the Court must deny the petitioner's motion; the grounds for denial being a matter of procedure and not upon the merits, the order denying the motion will be made without prejudice to the petitioner's presenting the jurisdictional questions in a proper motion either before another trial or after the contestants have rested their case upon another trial.'

The trial court has not refused to entertain the proponent's motion or to render a decision thereon. He determined that the motion must be denied because of lack of power on the part of the trial court to entertain it. He therefore did not reach the merits of the motion. The proponent asks us to review and reverse the trial court's decision on the question of power and direct him to proceed to determine the motion upon the merits. The first question that confronts us is whether this situation here presented is one for the proper exercise of the superintending control.

Section 86 of the North Dakota Constitution vests in the Supreme Court 'general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law.' The legislature has placed no limitations upon the Supreme Court in this respect, but by Section 27-0204, RCND 1943 it has authorized the court to issue such original and remedial writs as may be necessary to exercise its superintending control over inferior courts. Cases construing similar constitutional and statutory provisions are collected in these annotations. 112 A.L.R. 1351; 20 L.R.A., N.S., 942 and 51 L.R.A. 33. We have also considered the scope and nature of the superintending control of this court in the more recent cases of State ex rel. Johnson et al. v. Broderick, 75 N.D. 340, 27 N.W.2d 849; Goodman v. Christensen, 71 N.D. 306, 300 N.W. 460; State ex rel. Jacobson v. District Court, 68 N.D. 211, 277 N.W. 843. A number of our earlier decisions are discussed in State ex rel. Red River Brick Corp. v. District Court, 24 N.D. 28, 138 N.W. 988 and State ex rel. Lemke v. District Court, 49 N.D. 27, 186 N.W. 381.

It is established by the foregoing authorities that superintending control is a broad power the limits of which are not precisely defined by constitution, statute or precedent. Its limits are determined by the controlling court through the exercise of sound judicial discretion, guided by the fact that the primary jurisdiction is appellate while superintending control is an extraordinary power which becomes available to a litigant only under conditions that are tantamount to a denial of justice. 'This power should not be exercised except in case of emergency or exigency, or when made necessary by the lack of other adequate remedy, or when the ends of justice imperatively demand it.' State ex rel. Red River Brick Corp. v. District Court, supra [24 N.D. 28, 138 N.W. 990].

Superintending control will be exercised sparingly and only in emergent situations. It is a remedy of extremity and not of convenience.

Turning now to the situation before us we will assume without implying that the trial court is in error in determining that he does not have the power to entertain and decide a motion notwithstanding a disagreement of the jury. Nevertheless the motion was presented to him and he has by memorandum opinion announced his intention to deny it. Section 28-2702 provides what orders are appealable. The right of appeal from an intermediate order is statutory. Warren v. Slaybaugh, 58 N.D. 904, 228 N.W. 416. An order denying a motion for judgment notwithstanding the verdict is not appealable. Stratton v. Rosenquist, 37 N.D. 116, 163 N.W. 723; Starke v. Wannemacher, 32 N.D. 617, 156 N.W. 494, 4 A.L.R. 167; Houston v. Minneapolis, St. Paul & S. S. M. R. Co., 25 N.D. 469, 141 N.W. 994, 46 L.R.A., N.S., 589, Ann.Cas.1915C, 529; Turner v. Crumpton, 25 N.D. 134, 141 N.W. 209. Corelatively, an order denying a motion for judgment notwithstanding a disagreement of the jury is likewise non-appealable.

The fact that an order is not appealable does not mean that it is not reviewable. In fact most intermediate orders which are non-appealable may be reviewed as an incident to or a part of the final action of the court. An order denying a motion for judgment notwithstanding the verdict made before judgment is reviewable on appeal from the judgment. Satterlee v. Modern Brotherhood of America, 15 N.D. 92, 106 N.W. 561; Heald v. Strong, 24 N.D. 120, 138 N.W. 1114; Olson v. Ottertail Power Co., 65 N.D. 46, 256 N.W. 246, 95 A.L.R. 418; 2 Am.Juris., Appeal and Error, Sec. 103. See also Ellingson v. Northwestern Jobbers' Credit Bureau, 58 N.D. 754, 227 N.W. 360.

Every right which...