Swanson v. Andrus

• Decision Date: 11 October 1901
• Citation: 87 N.W. 363,84 Minn. 168
• Parties: SWANSON v. ANDRUS.
• Court: Minnesota Supreme Court

84 Minn. 168

87 N.W. 363

SWANSON

v.ANDRUS.

Supreme Court of Minnesota.

Oct. 11, 1901.

Appeal from district court, Hennepin county; J. F. McGee, Judge.

Action by Charles J. Swanson against John E. Andrus. Verdict for plaintiff. From an order granting a new trial unless plaintiff remits part of verdict, defendant appeals. Motion to dismiss denied.

Syllabus by the Court

1. An order granting the defendant's motion for a new trial unless the plaintiff, within a limited time, files an agreement remitting a part of his verdict, but denying the motion if such condition is complied with, does not, as to the defendant, become final, and therefore an appealable order, unless and until the plaintiff complies with the condition within the time limited.

2. Written notice of the making of such order cannot be served on the defendant, so as to limit his right of appeal, until the order becomes one denying his motion for a new trial by reason of the performance of the condition by the plaintiff. Hahn, Belden & Hawley, for appellant.

John Lind and A. Ueland, for respondent.

START, C. J.

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 this court a stipulation and agreement in writing consenting that the verdict may be and shall be reduced to the sum of eight thousand thirty and 68/100 dollars. It is further ordered, in case plaintiff shall, within the time aforesaid, file such agreement with the clerk of this court, then and thereupon the 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 (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...