Zimmerman v. Kitzan, 7192

• Decision Date: 26 August 1950
• Docket Number: No. 7192,7192
• Citation: 77 N.D. 477,43 N.W.2d 822
• Parties: ZIMMERMAN et al. v. KITZAN et al.
• Court: North Dakota Supreme Court

Page 822

43 N.W.2d 822

77 N.D. 477

ZIMMERMAN et al. v. KITZAN et al.

No. 7192.

Supreme Court of North Dakota.

Aug. 26, 1950.

Syllabus by the Court.

1. Whether in an equitable action, not triable to a jury as a matter of right, an issue or issues of fact shall be submitted to a jury is a matter wholly within the discretion of the trial court.

2. As the submission of an issue of fact to a jury in an equitable action is discretionary, so is the question whether the issue should be withdrawn or the jury discharge before verdict is returned, or if verdict is returned the use to be made of it. The court may discharge the jury at the close of the evidence or at any stage of the proceedings or render such judgment as the facts warrant, or it may withdraw issues submitted to the jury before they have been determined and itself determined the issues, or determine the case on an issue not submitted to the jury and make findings and decision according to its own judgment and enter judgment in accordance with its own determination as though the trial had taken place without a jury.

3. In an equity case submitted to the jury for an advisory verdict judgment should not be rendered directly upon the verdict itself as in an action of law. Such advisory verdict does not relieve the court of the duty of making findings of fact as the basis for the judgment. The judgment must be the result of the conclusions of the judge both on the law and the facts.

4. The laws of this state provide that 'A new trial is a reexamination of an issue of fact in the same court, after a trial and decision by a jury or court or by a referee.' NDRC 1943 28-1901. And that 'A motion for a new trial must be made within the following time after the return of the verdict or rendition of the decision: * * *.' NDRC 1943 28-1903. It is held that the limitation of time within which a motion for a new trial must be made under these provisions begins to run when the issue of fact has been tried and decided either by a binding verdict which will furnish a foundation for the judgment or by a decision of the court.

5. 'It is the filing of signed findings and conclusions and order for judgment that constitutes the final decision, which is effective only from the date of filing, and which is not made until deposited with the clerk for filing.' Crane v. First National Bank, 26 N.D. 268, 144 N.W. 96.

6. In an equitable action in which an advisory verdict has been returned and where the case is before the court for decision, the court is not required to render final decision on the merits of the cause. If in its judgment the ends of justice demand, it may order a new trial.

7. The instant case is an equitable action in which an issue or issues of fact were submitted to a jury. The jury returned an advisory verdict favorable to the defendants. The trial judge in a memorandum opinion indicated that he proposed to render a decision adverse to the plaintiffs. The court made no findings of fact or conclusions of law, or order for judgment. While the case was so pending for decision plaintiffs moved for a new trial on the ground that because of the illness and impaired vision of the court reporter he was unable to make a correct report of the testimony given and the proceedings had upon the trial, and that he is unable to furnish a transcript of the testimony given and the proceedings had at the trial. That consequently it will be impossible to obtain a transcript of the testimony given and the proceedings had upon the trial, and as a result the plaintiffs probably will be prevented from obtaining a review in the supreme court of any judgment that may be rendered against them in the case. The trial court ordered that a new trial be had.

It is held, for reasons stated in the opinion, that the action of the trial court in granting a new trial was a valid exercise of inherent power of an equity court in the case then pending before such court for decision.

Murray & Murray, of Bismarck, for plaintiffs and respondents.

Milton K. Higgins, of Washburn, for defendants and appellants.

CHRISTIANSON, Judge.

This is an appeal by the defendants from an order for a new trial in an equitable action in which the jury had returned a verdict favorable to the defendants. The record presented on this appeal is quite meager. It does not contain the pleadings, the court's instructions to the jury, or the verdict. It does not show what issues were involved or the subject matter of the action; but in a memorandum decision on plaintiffs' motion for a new trial the court states that a jury was impaneled to try the case and that the jury returned an advisory verdict. On the oral argument it was admitted by counsel that the case was one properly triable to the court and that the verdict of the jury was advisory. It appears from the affidavit of plaintiffs' counsel submitted in support of the motion for a new trial that after the return of the verdict the trial court in a memorandum which was transmitted to counsel for the respective parties announced that he would decide the case in favor of the defendants. The memorandum is not a part of the record so we have no means of knowing its contents. It appears from the affidavit of plaintiffs' counsel that immediately after he received notice of the court's announcement and about two days after the memorandum was made he ordered from the official court reporter a transcript of the proceedings had and testimony taken at the trial and arranged with the reporter for such transcript. That thereafter he wrote to the court reporter time and again asking for the transcript but received no reply, that later he received a letter from the reporter that the transcript would be prepared as soon as possible. It is further stated in the affidavit that affiant has been informed and believes that at the time of the trial the court reporter was ill and physically unable to make complete or correct shorthand notes of the testimony given at the trial and that he has been informed and believes that said court reporter has been ill ever since the trial and by reason thereof is physically and mentally unable to make a transcript of the testimony and proceedings, that affiant has communicated these facts to the trial judge and believes that the judge is unable to cause said court reporter to make a transcript. That affiant is informed by the judge that said court report has resigned and that another court reporter has been appointed in his place; that affiant verily believes that the present court reporter cannot make a transcript of the shorthand notes made by his predecessor and could in no event certify as to the correctness of the notes as to the proceedings had; that the plaintiffs and their counsel have exercised due diligence and in good faith exercised every possible means to procure a transcript and without any fault or negligence on their part are unable to procure a transcript; that by reason thereof the plaintiffs will be unable to appeal from any judgment that may be rendered against them an will be deprived of their constitutional right of having such judgment reviewed by the supreme court of this state. In such affidavit it is further stated that no findings of fact or conclusions of law have been filed with the clerk of the district court and that no judgment has been entered in the case. Plaintiffs asked that the court order a new trial forthwith so that the case may be retried, the testimony taken and the plaintiffs afforded an opportunity to procure a transcript of the testimony and thus be enabled to have any decision that may be rendered reviewed by the supreme court. In the motion for a new trial it is stated that the motion is made upon the affidavit of plaintiffs' counsel and upon all the records and files in the action including the minutes of the court and upon the ground specified in NDRC 1943, 28-1902, subdivision 8: 'Loss or destruction, without fault on the part of the party aggrieved, of the official shorthand minutes taken at the trial containing the testimony offered and the instructions of the court when given orally to the jury, or either, before a transcript thereof has been made.'

There was also submitted in support of the motion an affidavit by the court reporter who took the shorthand notes of the proceedings had. In such affidavit it is stated:

'That at the time and during the trial of the above entitled action at Mandan, North Dakota, this affiant was ill; that he was suffering severely with his eyes; that it was difficult during said trial for this affiant to see his notes; that consequently this affiant believes that he might not have taken down all of the testimony and proceedings in the case completely and correctly; that ever since said trial and at the present time he has been ill and still is ill, and especially having serious trouble with his eyes, and that at all times since said trial this affiant has been unable to correctly and completely interpret and read his shorthand notes taken at the trial of the above entitled action; and that at all times since said trial this affiant has been unable and still is unable to make a correct and complete transcript of the evidence and proceedings introduced and had in the trial of the above entitled action; that this affiant verily believes that he never will be able to make a correct and complete transcript, or any kind of a transcript of the evidence and proceedings in the above entitled action.

'That shortly after the court rendered its decision in said case, namely, in the spring of 1948, J. K. Murray, attorney for the plaintiffs, ordered a transcript of the testimony and proceedings in said action, and personally guaranteed this affiant's fees for making same, and asked this affiant how much he wanted paid down as a deposit for such transcript; that on divers and several occasions since, this affiant has received from the said J. K. Murray letters demanding a...