Burger v. Sinclair
This text of 140 N.W. 231 (Burger v. Sinclair) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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(after stating the facts as above). We must remember that the real controversy in this case is not a controversy between the respective counsel, but between their clients, and that the province of this court is not to act as umpire in a fair fight between such counsel, but to see that justice is ultimately done to the litigating parties, and [319]*319that the administration of the law itself may be reasonable and without just subject for criticism. In the former motions (Burger v. Sinclair, post, 326, 140 N. W. 235) we held that, under the express wording of the statute, we had no jurisdiction or authority to allow the filing of a. supersedeas bond, or the filing of a bond which would operate as a supersedeas in this court, and that the time for filing such bond in the district court had, under the statute, expired. We are here, however, asked merely to advance the particular cases on the calendar of this court, so that justice may be done, and unnecessary litigation and annoyance and humiliation obviated. We realize fully that the statute merely requires us to advance cases where some matter of public interest is involved, and that this matter is hardly a matter of public interest under the terms of the statute, though we believe that basic justice to the individual and a reasonable administration of the law is in one sense always a matter of public interest. We do not, however, believe that the statute which provides that matters of public interest, shall' be advanced prohibits us from advancing other causes when, in our reasonable discretion, it seems fitting that they should be advanced. In fact, we find no courts which have ever taken this position, but have rather taken the position that the control of their own calendars is within their discretion. This fact counsel for respondent, himself, seems to concede. An appeal to the courts is, at the most, a drastic measure. The levy and sale under any execution is, to say the least, humiliating. To insist upon such a levy and sale when, perhaps, the judgment under which the same is sought to be effected will ultimately be declared null and void, is certainly a matter which should be avoided if possible. Especially is this so where there is no doubt of the solvency of the defendant, and no doubt of his willingness and ability to pay any judgment that may be affirmed against him. To insist, indeed, that a defendant shall go through the idN, though humiliating, form of seeing his farm or other possessions, on which he may have labored for a lifetime, sold under the hammer of the sheriff, when the same may be absolutely unnecessary, and can be avoided by merely advancing a case upon the calendar, seems to be limiting judicial discretion altogether too much. This is especially true when there are three cases, all of which can be disposed of on the same argument, and the calendar cleared to that extent. No hardship is worked on the judgment creditors by [320]*320advancing tbe appeals for early argument, — only a short delay at most in collecting their judgments if the cases are so advanced, tried, and judgments affirmed. If reversed, no irreparable injury is done such .as may result from a denial of this motion.
It' may be said that the defendant may redeem from the executions. Even then he would be compelled to bring suit for the recovery of the money so paid, and not only might the question be raised that the payments were voluntary, but, according to some of the affidavits in this ■case, a collection of the judgments on such suits would be problematical. This court has, in the past, exercised its discretion in the control of its ■calendar. It has, for instance, in cases where counsel from certain towns or localities have had a number of causes upon the calendar, .and by having a number of such argued at one time, the necessity of frequent journeys to the capital has been able to be avoided, allowed such causes to be argued out of their order. If this court can accommodate counsel, it certainly ought to be able to accommodate litigants themselves. Calendars and rules are made for litigants, and not litigant’s for calendars and rules. When a permissible exercise .of discretion will result in administering justice, while a denial of its exercise will work injustice, we should resolve the question in favor of a just result, rather than stand on ceremony concerning the formal method used in reaching the desired end.
It is argued that the defendant in this case could go into a court of ■equity and enjoin the levy of the executions. Whether this could be done or not, we do not say, but even if it could be done, it would necessitate three other lawsuits, and, perhaps, three other appeals, the expense and delay of all of which can be obviated by the simple expedient •of advancing the causes upon the calendar.
It is also contended that the appeals have all been dismissed “by operation of the mandate of this court made on a former motion to dismiss” (Burger v. Sinclair, post, 326, 140 N. W. 235), to the effect that “respondent’s motion to dismiss said appeal is denied on condition, however, that appellants, within twenty days from the date of this order, file with the clerk of the supreme court an undertaking for costs in compliance with the statute, with sureties to be approved by the clerk of the district court,' and that, unless such condition is [321]*321complied with in the time aforesaid, the appeal in said action shall be dismissed.”
Plaintiff’s and respondent’s counsel insists that though cost bonds were filed, two of them were insufficient in form, and that they were not filed long enough prior to the expiration of the twenty days to allow an exception to and justification of the sureties. On account of these defects he alleges that the order has not been complied with, and the appeals have therefore been dismissed by operation of law. We do not think that there is any force in either of his contentions. There can be no doubt that, under the order of the court, he was entitled to insist upon a justification of the sureties. The order, however, did not provide that this opportunity for justification should have been afforded within the twenty days. All that the order provided was that the bonds should be approved by the cleric of the district court ioithin that time, and this was done. Two of the bonds were defective in that, evidently through a mistake of the stenographer, the word “plaintiff” was used instead of “appellant,” the bond reading, “Now, therefore, we do hereby undertake that the said appellant will pay all costs and damages which may be awarded against plaintiff on said appeal.” Defendant was the appellant, and therefore the use of the word “plaintiff” was incorrect. This mistake by no means invalidated the bonds, as the intention of the parties was elsewhere in the instrument, and, by the instrument as a whole, made perfectly clear. Schill v. Reisdorf, 88 Ill. 411; Hilbish v. Asada, 19 N. D. 684, 125 N. W. 556. There was, also, in each of the bonds, an additional promise and obligation which was, in itself, abundantly sufficient, and operated as a bond. It was to the effect that the sureties did “also undertake in the sum of $900 that if the said judgment so appealed from, or any part thereof, is affirmed, or said appeal is dismissed, the said appellant
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140 N.W. 231, 24 N.D. 315, 1913 N.D. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burger-v-sinclair-nd-1913.