Benoit v. Revoir

77 N.W. 605, 8 N.D. 226, 1898 N.D. LEXIS 37

• Court: North Dakota Supreme Court
• Decided: December 7, 1898
• Status: Published

Opinions

Bartholomew, C. J.

From a judgment against him entered in Justice Court, the defendant appealed to the District Court upon questions of law alone. There the ’judgment was affirmed, and he now .appeals to this Court. The judgment must be affirmed again. The action was brought before a justice in the City of Grand Forks, and the pleadings were filed, and a garnishee, who had been summoned, disclosed certain indebtedness to defendant. Defendant moved for security for costs. The motion was granted, and by agreement of parties the plaintiff deposited in court a certain sum of money as security. Defendant moved for change of venue, and the case was sent to Justice Brown, in Grand* Forks. Before that justice, plaintiff moved for a change of venue, and the case was sent to Justice Richards, in a country township. Said justice, by proper notice, set the case for November 16th, 1897 at 2 o’clock p. m. When the case was called the parties appeared by their respective attorneys. The defendant objected to any further consideration of the case until the amount disclosed by the garnishee was paid into court, and until the money 'that had been deposited with the first justice as security for costs should be deposited in Justice Richard’s court. The docket entry reads, “Upon the above objections this court holds this case open until November 17, 1897, at 2:3o p. m., for consideration.” The defendant objected to this for the reason that it was not one of the statutory grounds for postponement. His objection was overruled. On the 17th he appeared and moved to dismiss on the ground that the justice had lost jurisdiction by thus holding the case open. The overruling of this motion is the subject of his first assignment of error in this Court. It must be overruled. The case was not continued. It was simply held open to give the justice time to consider the objections that had been made. Section 6683, Rev. Codes, which authorizes an intermission not to exceed 24 hours during the trial, was intended to cover just such a case as this.

Defendant then moved for security for costs. A denial of this motion is the subject of his second assignment of error. It is without merit. Security had been given in the manner agreed upon. By depositing the money in court, plaintiff lost control of it. If it had not found its way into the hands of Justice Richards, plaintiff was not to blame.

Plaintiff moved, on affidavit of the attorney for a continuance for five days, for the purpose of taking depositions in Minnesota. Defendant objected to the súfficienc)'- of the affidavit, but the motion was granted. This is assigned as error. It will not be necessary to set forth the affidavit. The objection to it is that it fails to show that due diligence had been exercised to procure the attendance of the witness, or his testimony. The application for continuance must have been made under section 6650, Rev. Codes, and that section requires that the affidavit shall show diligence. The continuance was asked for the purpose of taking the disposition of the plaintiff, and the affidavit stated that he was a nonresident of this state, and resided in Polk county, in the State of Minnesota. There are no allegations showing that any thing had been done towards obtaining such disposition. We think the Court was not justified in assuming, from the mere fact of nonresidence, that ordinary diligence might not have secured the testimony. The affidavit was deficient on the point of diligence. The continuance ought not to have been granted.

On the day to which the case was continued, the defendant, without withdrawing his general appearance in the case, or offering to withdraw it, attempted to appear specially, and moved to dismiss the case on the ground that, by granting the continuance without sufficient cause shown, the justice lost jurisdiction of the. case, ■and that there was no security for costs. The motion was denied, and this ruling is assigned as error. For the purposes of this case, we will concede that he was in a position to raise a question of jurisdiction. Yet we find it unnecessary to decide whether or not this justice lost jurisdiction as claimed, because it is clear to us that, if- jurisdiction was so lost, the defendant, by his own conduct, immediately restored it. The motion to dismiss was based upon two grounds. One denied jurisdiction, and* the other invoked jur- ■ isdictiori. The two 'were utterly inconsistent. By asking the Court at that time to exercise jurisdiction in the case by passing upon the matter of security for costs, complicated as it was by the fact that by consent money had once been deposited in lieu of security, the defendant estopped himself from thereafter asserting that the Court was without jurisdiction. Further, the defendant objected to receiving oral testimony, and, that being overruled, he at once proceeded to a trial on the merits; and when he appealed from the judgment that was rendered against him, while his appeal was upon questions of law only, instead of confining himself to jurisdictional questions, he not only assigns error in not sustaining a motion for security for costs, as already stated, but his further alleged error is the refusal of the Court to grant his motion to dismiss, one of the grounds of which was that there was no security for costs,- — thus asking the District Court to pass upon the ruling of the justice upon a non jurisdictional question submitted to the Justice Court by defendant after, as he now claims; that court had lost jurisdiction. .On this point, see Lyons v. Miller, 2 N. D. 1, 48 N. W. Rep. 514. We are clear that, if jurisdiction was lost by the continuance, it was fully restored by defendant’s subsequent voluntar}'- acts.. This ruling is not in conflict with the case of Miner v. Francis, 3 N. D. 549, 58 N. W. 343. We held in that case that where the summons was fatally defective,- and the defendant appeared specially, and moved to dismiss upon that ground alone, and, the -motion being denied, he answered, but specially reserved all his rights under the motion, and on appeal to the District -Court he appealed only as to the question of jurisdiction, he had not by his conduct waived any of his rights. But the vital difference between that case and the one at bar is apparent on statement. The judgment of the District Court is affirmed.

Young, J., concurs.