Swanson v. Andrus
| Decision Date | 11 October 1901 |
| Docket Number | Nos. 12,697 - (112).<SMALL><SUP>2</SUP></SMALL>,s. 12,697 - (112).<SMALL><SUP>2</SUP></SMALL> |
| Citation | 84 Minn. 168 |
| Parties | CHARLES J. SWANSON v. JOHN E. ANDRUS.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Hennepin county, McGee, J., denying a motion for a new trial. Respondent's motion to dismiss the appeal denied. Order affirmed.
Hahn, Belden & Hawley and W. E. Hale, for appellant.
John Lind and A. Ueland, for respondent.
On motion to dismiss the following opinion was filed, October 11, 1901:
Motion by respondent to dismiss the appeal herein.
A sufficiently accurate statement of the facts for the purposes of the motion is this: The plaintiff had a verdict for $15,982.79. Thereafter, and on December 14, 1900, the parties, with reference to a motion for a new trial by the defendant, entered into a stipulation, which, so far as here material, was to the effect that, in case the defendant desired to make a motion for a new trial, notice of such motion should be given prior to February 1, 1901; and, if he desired to appeal from the order which the court might make on the hearing of the motion, such appeal should be perfected, and the return to this court made, within five days after notice of the making of such order, and that such appeal should be heard at the then next April term of this court.
The motion for a new trial was made by the defendant on the ground that the verdict was not justified by the evidence and for errors of law, and on February 20, 1901, the court entered its order thereon, the essential part of which was in these words:
It is hereby ordered that a new trial in this action be, and the same is hereby, granted, unless the plaintiff, within three days from notice of the making of this order, file with the clerk of said court a stipulation and agreement in writing consenting * * * that the verdict * * * may be and shall be reduced to the sum of $8,030.68. * * * It is further ordered that in case said plaintiff shall, within the time aforesaid, file his said written consent and agreement with the clerk of this court, then and thereupon the said motion for a new trial shall be and is hereby in all things denied.
Notice of the making of this order was served by the plaintiff upon the defendant the day it was entered.
The plaintiff appealed to this court, giving a supersedeas bond, from the order granting conditionally the defendant's motion for a new trial, and the order on the hearing of his appeal was affirmed in this court (83 Minn. 505, 86 N. W. 465), and the remittitur filed in the district court on July 2, 1901, and on the same day, and not before, he filed with the clerk a written agreement consenting that the verdict might be reduced as required by the order.
The defendant on the next day, and not before, gave notice of appeal to this court from the order. Thereupon the plaintiff moved to dismiss the appeal on the grounds:
1. It was not taken within thirty days after written notice of the making of the order was served on the defendant.
2. It was not taken within five days after notice of the making of the order, as required by the stipulation.
3. The questions attempted to be raised by this appeal are res adjudicata by the judgment of this court on the former appeal.
It is only necessary to discuss the first ground urged. It is true that an appeal from an order can only be taken within thirty days after written notice of the same. G. S. 1894, § 6138; Levine v. Barrett & Barrett, 83 Minn. 145, 85 N. W. 942. But such notice cannot be given to a party for the purpose of limiting the time for appealing from a conditional order until the order becomes as to him a final order, and therefore appealable. Any other rule, the absurdity of an attempt to limit the time for appealing from a nonappealable order aside, would enable a party to give written notice of the making of a conditional and nonappealable order before the expiration of the time for the performance of the condition, thus setting the statute of limitations as to appeals running, and, after the thirty days in which to appeal had expired, perform the condition, and thereby defeat his adversary's right of appeal. The correct practice in cases like the one at bar requires the party upon whom the condition is imposed to perform it, and then given written notice of the making of the order and of his compliance with its terms. The opposite party must then, if he desires to appeal from the order, do so within thirty days after receiving such notice of the making of the order. See the record in the cases of Hall v. Chicago, B. & N. R. Co., 46 Minn. 439, 49 N. W. 239, and Thompson v. Chicago, St. P. & K. C. Ry. Co., 71 Minn. 89, 73 N. W. 707.
The pivotal question, then, on this motion is whether the order in question was a final, and therefore an appealable, order, denying the defendant's motion for a new trial at any time before the plaintiff complied with its conditions. It is too obvious to justify any discussion that the question must be answered in the affirmative, for it was not until the plaintiff complied with its conditions, the time for such compliance not having expired by reason of his own appeal, that the order became one denying the motion for a new trial. If he had refused or neglected to have so complied within the time limited, the order would have become one granting a new trial, — the full relief the defendant asked for. If the latter had appealed before the expiration of such time, and the plaintiff had thereafter refused or neglected to comply with the conditions of the order, the appeal would have necessarily been dismissed, for there would then have been no order denying the defendant's motion, but one granting it. The stipulation of the parties necessarily contemplated the making of an order by the trial court which was at once appealable, hence it has no application to a conditional and nonappealable order. The question of res adjudicata does not arise on this motion to dismiss the appeal. It is a question to be considered upon the hearing of the appeal on its merits, and, if resolved in favor of the plaintiff, it will be a reason for affirming the order appealed from. Motion denied.
1. Reported in 87 N. W. 363, 88 N. W. 252.
2. October term, 1901.
On appeal the following opinion was filed December 13, 1901:
BROWN, J.
This action was brought to recover money expended in preparing to perform a contract to do the fireproofing work on defendant's building; also the profits plaintiff might have made had he been permitted to perform the contract. A former appeal is reported in 83 Minn. 505, 86 N. W. 465. The facts are there very clearly outlined and stated, but for a clear understanding of the questions presented for consideration at this time a brief statement thereof is deemed necessary.
Defendant was the owner of a building situated in the city of Minneapolis, known as the "Andrus Building." In October, 1898, he decided to remodel and rebuild the same, making it eight stories high. His plans called for six floors above the second, and partitions in five of the stories above the second were to be fireproof. Proposals for doing the fireproofing work were invited, and one from plaintiff was the only one considered. Negotiations were had between Thorpe Bros., representing defendant, and his architect, Long, which resulted in a contract by which plaintiff was to do such work for the sum of $19,500. The contract was made and entered into on the part of defendant by Thorpe Bros., acting as his agents. Subsequently, acting under the said contract, plaintiff made preparations, including the manufacture of tiles, to fulfil the contract; but on May 18, 1899, he was ordered out of the building by Thorpe Bros., acting as agents for defendant, and they repudiated the contract, and refused to permit him to perform it.
This action was brought to recover the money expended in preparation for the performance of the contract, and for the profits which plaintiff might have made if he had been permitted to fulfil the same. After making the contract with plaintiff, defendant changed his plans by adding two more stories to the building, making it ten, instead of eight, stories high. Plaintiff claimed on the trial of the action to be entitled to recover the profits he might have made, not only from a performance of the contract as to the six stories, but as to the additional stories added by defendant after plaintiff had been prevented from performing the same as well.
When the case was here before it came up on plaintiff's appeal, the trial court having held that the plaintiff was not entitled to profits as to the two additional stories. We sustained the contention of defendant in this respect, holding that plaintiff was entitled to recover the money expended by him in preparing to perform the contract, and also the profits he might have made had he completed his contract as to the six stories, but that he was entitled to nothing as to the two stories added after his contract was repudiated by defendant.
The cause was remanded, and is now before us on defendant's appeal. Three questions are presented for decision and...
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