The Bank of Park River v. The Town of Norton

• Decision Date: 30 November 1903
• Citation: 97 N.W. 860,12 N.D. 497
• Court: North Dakota Supreme Court

97 N.W. 860

12 N.D. 497

THE BANK OF PARK RIVER v. THE TOWN OF NORTON

Supreme Court of North Dakota

November 30, 1903

Appeal from District Court, Walsh county; Lauder, J., sitting by request.

Action by Bank of Park River against the town of Norton. Judgment for plaintiff. Defendant appeals.

Dismissed.

Appeal dismissed.

E. R Sinkler, for appellant.

Township order not drawn on the fund out of which it is payable, is void. I Dil. Mun. Corp. 505; Argenti v. City of San Francisco, 16 Cal. 255; Martin v. City and County of San Francisco, 16 Cal. 285; Wilson v. City of Aberdeen, 52 P. 524; Minor v. Legging, 37 S.W 1086, 15 Am. & Eng. Enc. of L. (1st Ed.) 1214; People ex rel. J. G. Cooke v. Lewis Wood, 71 N.Y. 371; Baker v. City of Seattle, 27 P. 462; Hoffleman v. Pennington County, 52 N.W. 851.

Township warrants are not negotiable so as to protect a bona fide purchaser for value without notice. Gilman v. Township of Gilby, 8 N.D. 627, 80 N.W. 889, 73 Am. St. Rep. 791; Goose River Bank v. Willow Lake Township, 1 N.D. 26 44 N.W. 1002, 26 Am. St. Rep. 605, 1 Dil. Mun. Corp. sections 503, 504, 487; Miner v. Vedder, 33 N.W. 47; Hubbell v. Town of Custer City, 87 N.W. 520; Story v. Murphy, 9 N.D. 115, 81 N.W. 23.

It was error to receive evidence over the objection, of what was done at the meeting of the township board. San Joaquin L. & W. Co. v. Beecher, 35 Pa. 349; Gould v. Norfold Co., 57 Am. Dec. 50; Hunneman v. Jamaica Fire Dept., 37 Vt. 40.

The mode of contracting constitutes the measure of the power of the officers of a municipal corporation. Rev. Codes, section 2538; 1 Dil. Mun. Corp. 447; Zottman v. The City and County of San Francisco, 20 Cal. 97; Crawford v. Ice Company, 60 P. 14.

Township warrants do not draw interest until they have been presented and marked "not paid for lack of funds." Rev. Codes, 2614. Freeman v. City of Huron, 73 N.W. 260.

At close of the trial both parties moved for a directed verdict. The court did not direct a verdict for either party. This was error. It would render an appeal impossible, for an appeal from a case tried to the court would be abortive where all the evidence offered is not in the record. The parties did not waive a jury trial and all the concomitants and advantages of such a trial, such a motion for a new trial, and the right to appeal which go with a jury trial. 6 Enc. Pl. & Pr. 704; Thompson v. Brennan, 80 N.W. 947.

H. A. Libby, for respondent.

The legislature intended to provide two distinct methods by which road machines might be purchased by townships. First--The township board may of its own accord, without any petition or further authority than is vested by this section, purchase road machines for the use of the township, and such purchase constitutes a good and valid obligation against the township. Rev. Codes, section 1115a. Second--The chairman of the township board upon the petition of the majority of the freeholders of the township, could contract for the purchase of these machines. Rev. Codes, section 1115b. If all the freeholders of the township desired such machines purchased and the town refused, they could have resort under section 1115b.

Where, at the close of the evidence on a jury trial, both parties ask for the direction of a verdict, it will be presumed that they intend to waive the right of submission to the jury and let the court decide the questions involved, both of law and fact, unless some request is made. 6 Enc. Pl. & Pr. 703; Haganan v. Burr, 41 N.Y.S. 423; Thompson v. Liverpool Steam Co., 44 N.Y. 407; Benjamin v. Welsh, 73 Hun. (N.Y.) 371; Ropes v. Arnold, 81 Hun. (N.Y.) 476; Schran v. Werner, 81 Hun. (N.Y.) 561; Fogarty v. Hook, 84 Hun. (N.Y.) 165; Farham v. Davidson, 3 Cush. 232; Kelly v. McGhee, 137 Pa. 443; Potts v. Wallace, 146 U.S. 689, 13 S.Ct. 196.

It was a mere technical error in the court to discharge the defendant instead of directing the jury to find him not guilty. Noise v. Hewitt, 18 Wend. 141.

Where plaintiff is entitled to directed verdict, it is not a substantial error for the court to order judgment on plaintiff's motion instead of directing a verdict. Duluth Chamber of Com. v. Knowlton, 44 N.W. 2; Engrer v. Ohio & M. Ry. Co., 42 N.W. 217.

The court having the power in a proper case to direct a verdict certainly has the power in a more direct manner to reach substantially the same result by finding the facts itself and rendering judgment accordingly. Gammon v. Abrams, 53 Wis. 323, 10 N.W. 479; Cahil v. Chicago Ry. Co., 74 F. 285; Erickson et al. v. Citizens' Nat. Bank., 9 N.D. 81, 81 N.W. 46.

Defendant's notice of motion and the motion itself are insufficient in that they do not specifically point out the irregularities of the court and jury, or the misconduct of the jury, or the insufficiency of the evidence, or the errors of law occurring at the trial. Henry v. Maher, 6 N.D. 413, 71 N.W. 127; Thompson v. Cunningham, 6 N.D. 426, 71 N.W. 128.

When party requests the withdrawal from the jury issues properly triable by them, cannot complain of the court's actions in granting his demand. Stepp v. National Loan Ass'n, 37 S.C. 417.

Where statute provides that, when a jury is waived the cause shall be heard and determined by the court and judgment entered, the court shall render a judgment and not a verdict. Bearce v. Bowker, 115 Mass. 129.

The effect of the waiver is to submit to the court the question involved and make it the trial of the facts. 12 Enc. Pl. & Pr. 269; Grigsby v. Western Union Telegraph Co., 59 N.W. 743; Lazare v. Allen, 47 N.Y. 340; Cling v. Irving Nat'l Bank, 47 N.Y. 528.

Section 2596 Rev. Codes, provides that meetings of township boards "may adjourn from time to time, and in cases of emergency may hold special meetings on call of the clerk on three days' notice." This is not a notice to the public, only notice to the board. Lewick et al. v. Glazier et al., 74 N.W. 717; Shaw v. Jones, 7 Ohio Dec. 453.

Each supervisor had actual notice of the meeting and all were present and participated therein and acted in making the contract for the purchase of the grader. This is sufficient. Lord v. City of Anoka, 30 N.W. 550; Township of Beaver Creek v. Hastings, 18 N.W. 250; States v. Borough of Washington, 2 Am. & Eng. Corp. Cas. 39, 15 Am. & Eng. Enc. of L. (1st Ed.) 1034.

OPINION

MORGAN, J.

The complaint states a cause of action against the defendant, based on a township order issued by it in favor of the Fleming Manufacturing Company for the sum of $ 100. The answer alleges that defendant is not liable on said order, for the reason that the township board had no authority to issue the same on account of its failure to comply with the statutory requirements made and provided in such cases; that such order was issued in payment of a road grader purchased by said board; and that such order is void by reason of the fact that it was issued without a petition to said board to purchase said grader from a majority of the freeholders of said town. The answer also alleges that said order is void for other specified grounds, based upon a failure to comply with the provisions of section 1115b, Rev. Codes 1899, relating to the purchase of graders by township boards. At the close of taking the testimony defendant moved the court to direct a verdict in its favor. This motion was denied, and an exception taken by defendant to such ruling. Thereupon plaintiff moved for a directed verdict in its favor. The court thereupon asked plaintiff's counsel and defendant's counsel individually if he wished to stand upon his motion. Having received an affirmative response from each, the court discharged the jury without ruling on plaintiff's motion, and without any further remarks or explanations, except that the case would be taken under advisement. Later the court made findings of fact and conclusions of law in favor of the plaintiff. These findings of fact and conclusions of law were made on January 20, 1902. On March 3d following defendant served notice of intention to move for a new trial, to be based on errors of law occurring at the trial and the insufficiency of the evidence to justify the decision of the court. A statement of the case was settled, and the motion for a new trial made. This motion was based on alleged errors of law occurring at the trial, viz: (1) Errors in receiving evidence duly objected to; (2) refusing to grant defendant's motion for a directed verdict; (3) withdrawing the issues from the consideration of the jury and disposing of the case as a court case; (4) ordering judgment to be entered based on findings of fact in place of submitting the case to the jury for a verdict. The trial court denied the motion for a new trial. Defendant has appealed from the order denying the motion for a new trial.

The errors alleged and relied on for a reversal of the order refer to matters occurring at the trial, and are the same as those enumerated above, as contained in the statement of the case as settled. We are first called on to dispose of a question of practice before considering the merits. Respondent contends that this court cannot entertain the appeal on the merits, for two reasons: (1) It cannot be considered as an appeal from a decision of the case by the court, for the reason that no demand for a trial de novo is made, and that the appeal in this case is not from a judgment, but from an order refusing a new trial; (2) the case not having been tried by a jury, but by the court no provision is made for granting new trials in such cases in the district court, nor can errors be reviewed in such case in this court. Appellant insists that the court should have granted one of the motions for a directed verdict, and that to discharge the jury without having done so was prejudicial error. That may be...