Vidger v. Nolin
| Decision Date | 17 October 1901 |
| Citation | 87 N.W. 593,10 N.D. 353 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by S. J. Vidger and N. A. Lewis against Angust Nolin. Judgment for plaintiffs in justice court. On appeal judgment rendered for defendant and plaintiffs appeal.
Reversed.
Judgment reversed, a new trial ordered, and cause remanded.
J. W Tilly, for appellant.
When a verdict appears to be arbitrary, or manifestly and clearly wrong; or when it appears to be the result of passion prejudice, or misconduct of the jury, and when it is manifestly against the weight of evidence, it is not only within the power, but it is the duty of the court to set it aside. Belt Ry. Co v. Kinmare, 83 Ill.App. 200; Marshall v. Ry. Co., 34 S.E. 455; Dempsey v Roan, 27 S.E. 668; Atchison Etc. Ry. Co. v. Hine, 47 P. 190; Owen v. Cook, 9 N.D. 134, 81 N.W. 285. In this case, under the provisions of § § 6680, 6779, Rev. Codes, a justice is prohibited from entertaining or passing upon a counterclaim interposed as a defense in an action in forcible entry and detainer, excepting as a set-off to a demand made for damages or rents and profits. If the justice has no jurisdiction to try and determine a counter claim as a defense set up in an action of this character, and an appeal is taken from his judgment to a court of general jurisdiction, the appellate court only acquires such jurisdiction over the case as the justice originally had. 2 Enc. Pl. & Pr. 23; Gillande v. Administrator, 2 O. St. 223; People v. County Court, 10 Cal. 19; Tumkinstein v. Elgeutter, 11 Cal. 328; Rickey v. Superior Court, 59 Cal. 661; Wedgewood v. Parr, 84 N.W. 528; Yon v. Baldwin, 76 Ga. 769; Edwards v. Copper, 6 S.E. 792; Gage v. Manett, 23 Pa. 337; Hill v. Township, 19 At. Rep. 855.
M. A. Hildreth, for respondent.
If appellants desired to review any of the orders made in the cause they should have been made a part of his proposed statement of the case properly authenticated, and brought in and made a part of the record. § § 5719, 5463, 5465, Rev. Codes. The former order dismissing the appeal without prejudice was in no sense a bar to a subsequent appeal, such second appeal having been taken within the time allowed by law. Murphy v. Farnell, 9 Wis. 102; Pfenning v. Griffith, 29 Wis. 618; Ely v. Dillon, 21 Ia. 48; Minshall v. Ry. Co., 20 Wis. 644; Saunders v. Moore, 12 S.W. 783; French v. Rowe, 28 N.Y.S. 849; Langley v. Warner, 1 N.Y. 607; Dooley v. Fosten, 5 Kans. 269; Myers v. Mitchell, 46 N.W. 247; Field v. Elevator Co., 67 N.W. 147. By pleading to the merits plaintiff subsequently waived any question as to the jurisdiction of the district court. York v. York, 3 N.D. 348. The notice of intention to move for a new trial, and the notice of motion for a new trial were both made on the minutes, and the plaintiff failed to specify in his notice of intention to move for a new trial the particular errors of law upon which he would rely, and those that were set forth in his statement of case did not conform to those set forth in his notice of intention. The action of the trial court in striking out of the proposed stated case the errors of law was therefore proper. Subd. 3, § 5475, Code Civ. Proc.; Vol. 3, § 659, Deering's Cal. Code; Sprigg v. Barber, 122 Cal. 575; Leonard v. Shaw, 114 Cal. 542; Bohnert v. Bohnert, 95 Cal. 445; Pio Rico v. Cohen, 78 Cal. 386.
This action was commenced in justice's court under Art. 5, Chap. 3, Justice's Code, relating to forcible detainer of real estate. The complaint states a cause of action for a failure to surrender possession of such real estate after notice to quit had been duly given. The complaint further states that the plaintiffs leased the land described therein to the defendant for farming purposes, for the year commencing November 29, 1898, and ending November 29, 1899; that the plaintiffs reserved the right to sell such lands during said year, but by the terms of the lease bound themselves to give to the defendant the right and opportunity to purchase this land at the same price and terms offered by any other person; that plaintiffs received an offer for said land that was acceptable to them, and communicated the fact of such offer to the defendant, and informed him of the terms of the offer, and that he (the defendant) had the first option to purchase; that the defendant, under the stipulations of the lease, failed to make the purchase, whereupon the plaintiffs terminated the lease pursuant to its terms and provisions. In justice's court the defendant pleaded a general denial, and also a counterclaim for alleged damages. The counterclaim alleged an indebtedness due from plaintiffs to defendant by reason of defendant's having performed services for the plaintiffs and furnished board for their employes, amounting in all to the sum of $ 196.26. The plaintiffs recovered judgment in justice's court for the possession of the lands involved in the suit. The defendant appealed from such judgment to the district court, and in his notice of appeal demanded a new trial in the district court. Before such appeal was fully perfected, the plaintiffs took possession of the premises under an order of restitution issued by the justice. In the district court the defendant procured leave to file a supplemental answer, and subsequently an amended and supplemental answer, wherein another counterclaim was pleaded, setting forth that the defendant had been damaged in a large sum by reason of plaintiff's failure to comply with the terms of the lease wherein the plaintiffs gave the defendant the right to purchase these lands at the same price and terms offered and agreed on by any other proposed purchaser. These answers also placed in issue all the allegations of the complaint, and also set forth the counterclaim for $ 196.26, which had been pleaded in justice's court. The plaintiffs denied the allegations of each of these counterclaims by replies interposed at the proper time. This brief summary of the issues involved in the case will suffice for the purposes of a decision in this case here. It will be noticed that the complaint did not contain any demand for rent nor for damages by reason of the occupancy of the premises by the defendant. The complaint stated a cause of action for a wrongful detention of the premises simply, and only demanded immediate possession of the premises, with costs. No other relief was asked. It will also be noticed that the plaintiffs did not demur to either of the counterclaims, but issue was thereon joined by replies. On a trial had in the district court the defendant recovered a verdict on both of the counterclaims, on which verdict judgment was thereafter duly entered in the district court. Special questions were submitted to the jury by the court for answers, concerning the facts set forth in the counterclaims, and the jury found that there was due to the defendant from the plaintiffs the sum of $ 191.26, and interest, on the counterclaim pleaded in justice's court, and found facts concerning the second counterclaim, upon which the court ordered judgment to be entered for the sum of $ 320 and interest. No general verdict was found by the jury. There was no express finding submitted to it concerning the right to the possession of these premises at the time of the commencement of the action or at any other time. Neither did the judgment in the district court determine any question or fact directly pertaining to the right to the possession of the premises involved in the suit. The judgment rendered related solely to the recovery of the amounts found due as damages upon the counterclaims. There was no express adjudication or finding by the district court as to the right to the possession of these premises. A motion for a new trial was heard upon a statement of the case duly settled by the court. This motion was denied by the court, and judgment ordered and entered in favor of the defendant for the amounts found due by the jury. The plaintiffs appeal from that judgment. The respondent moves to dismiss the appeal, and to affirm the judgment of the district court, upon the ground that no sufficient assignments of error are subjoined to appellants' brief.
We find appended to appellants' brief 19 assignments of error which are there denominated in the aggregate as "specifications of error in law occurring at the trial." Assignment or specification No. 12 is as follows: "The court erred in overruling the objection of plaintiffs' counsel to the introduction of certain evidence on behalf of the defendant, to-wit:" Then follows in the brief a literal copy of the objection made to such evidence during the trial, and as set forth in the statement of the case as settled. Such objection was in the following words, to-wit: "At this time the plaintiffs object to any and all evidence offered on the part of the defendant under the several counterclaims pleaded and set up in their answer and supplemental answer, excepting that certain counterclaim pleaded which the plaintiffs by their reply deny, they pleading settlement in payment thereof, for the reason and upon the ground that such several counterclaims, and all of them, are not proper matters to be pleaded in defense to or as a counterclaim in this action," etc. We deem this a sufficient compliance with rule 12 of the amended rules of this court Strict compliance with this rule will not always be exacted, and its requirements will be relaxed in cases when there is substantial compliance with its terms. In other words, this court is invested by the terms of the rule with discretion as to enforcing a strict compliance with its terms or not. Under the terms of such rule, and under the decision of this...
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