Folsom v. Norton

125 N.W. 310, 19 N.D. 722, 1910 N.D. LEXIS 21

• Court: North Dakota Supreme Court
• Decided: January 25, 1910
• Status: Published

Opinions

Carmody, J.

This action was instituted in December, 1901, and was tried in July, 1908, before the court without a jury. The findings were filed on September 3, 1908, and judgment was entered in favor of the plaintiffs on September 3, 1908. On September 5, 1908, counsel for plaintiffs served upon Maddux & Rinker, attorneys for defendant,, by mail, a true copy of the findings of fact, conclusions of law, order for judgment, and judgment in this action. On September 19-, 1908, Peter Prader, clerk of the district court of Eddy county, made an affidavit in which he stated that C. J. Maddux, of the firm of Maddux & Rinker, had been several times after the files in said action, including the depositions, testimony, and exhibits, but that affiant was unable to give them to said Maddux for the reason that they had not been returned by the court since rendering judgment in said cause. Oh the same day C. J. Maddux, one of appellant’s attorneys, made an affidavit in said action that defendant intended to appeal said action to the supreme court; that the original files and depositions were not in the office of defendant’s attorneys ; that the clerk of said court informed him, the said Maddux, that the said files, depositions, and testimony taken were with the court, for which reason the said counsel had been unable to prepare, serve, or 'have settled a statement of the case; and that it would be necessary to have a settled statement on appeal. On these affidavits, and as stated in the order, for good cause shown and in furtherance of justice, on September 2.4, 1908, the district court made an exparte order extending the time for settlement of the statement of the case until March 1, 1909. On or about October 1, 1908, appellant’s attorneys served on plaintiff’s attorneys, by mail, a copy of said order extending the time for settling a statement of the case; that immediately on receiving a copy of said order plaintiff’s attorneys wrote defendant’s attorneys that in their judgment the order was absolutely void. On February 6, 1909, appellant’s attorneys served upon plaintiff’s attorneys a proposed statement of the case. On or about February 12, 1909, plaintiff’s attorneys served upon defendant’s attorneys, by mail, amendments to the proposed statement of the case, and also served at the same time objections to the service, allowance or settlement of any statement of the case, for the reason that the time for such service had long since expired, and no good cause had been shown for extending the time, and for additional reasons stated in the affidavit of J. E. Robinson,' which was annexed to said proposed amendments and objections to the settlement of the statement of the case. At the time said statement was settled, February 23, 1909, the parties respectively, were represented by counsel, and respondents’ counsel interposed certain objections to the settlement and allowance of the statement as hereinbefore stated, which objections were embodied in written form and submitted to the district court in that form. In connection.with said written objections and as a part thereof, the affidavit of J. E. Robinson, one of the respondents’ counsel, was also submitted. The court overruled said objections and made an order settling the statement of the case. When the case was reached in this court, a motion was submitted by respondents’ counsel to. strike the statement of the case from the records and affirm the judgment for the following reasons: “(1) That long prior to the date of the settlement of the statement of the case the period allowed by the statute for so doing had expired, and no extension of time was ever given either by consent of counsel or by order of the court. (2) That no cause for extending the time was ever brought to the knowledge of respondent’s counsel by notice, affidavit or otherwise, and that no good cause a.nd no cause whatever for extending the time was ever shown to the district court and no such cause ever existed, the evidence having all been taken and reduced to writing before the case was submitted to the trial court. (3) That the record herein does not show, or attempt to show, any good cause or any cause whatever for extending the time to settle a statement of. the case, though such settlement was made after the time had expired and against the objection of counsel for the plaintiffs to the effect above stated.

The said motion will be made on this notice and on the alleged statement of the case and the transcript and the entire record, pleadings, and proceedings herein and on the said objections and the annexed- affidavit of J. -E. Robinson, which is a part of'the alleged statement in the case.”

The affidavit of J. E. Robinson is of considerable length, and contains all the grounds stated in' said motion. The order extending the time for settling a statement of the case was made ex parte and deemed excepted to. We do not think that the affidavits of Peter Prader and C. J. Maddux,. upon which the order extending the time for settlement of. the stated case was made, show any sufficient reason for extending said time. They merely show that the papers and files in said action were in the .possession of the district judge, and it is to be presumed that appellant’s attorneys could have procured the papers and files at the same time that they procured the order extending the time for. settlement of the statement of the case to March 1, 1909. The affidavits do not show that appellant made any effort whatever to procure the files or settle the statement of the case within the time allowed by law. While the statute is exceptionally liberal, it does not go so far as to allow time to be extended in such cases without cause and against objection. On the contrary, the statute fixes -a condition precedent to such extension. The time can only be extended for good cause shown in furtherance of justice. Section 7068, Rev. Codes 1905; McDonald v. Beatty, 9 N. D. 293, 83 N. W. 224. True, the district court states in its order extending the time for the settlement of the stated case that it was made on the affidavits of Peter Prader -and C. J. Maddux for good cause shown and in furtherance of justice, but it is clear to us that said order was made on the affidavits of Prader and Maddux and without any other cause having been- shown. C. J. Maddux, one of appellant’s counsel, made an affidavit in -opposition to said motion that no written notice of the entry of judgment w-as ever served upon appellant’s attorneys. He -admits that a -copy of the findings of fact, conclusions of law, order f-of judgment, and judgment were served on them -on September 5, 1908. He made no objection to them, and the c-opy of the judgment showed on' its face that it had been entered'by the clerk of the '-district court. We think such service sufficient. But, in addition, J. E.-Robinson made his'affidavit that notice -of the entry of judgment was served at the time that the findings of fact, conclusions -of law, order for judgment, and judgment were served.

The motion to strike the settled' statement of the case from the record is therefore granted, but the granting of this motion does not necessarily affirm t-he judgment. There remains for -our considerátion the judgment roll proper, which includes the pleadings, the findings df the trial court, and the judgment. The question, therefore, which we are to .determine is whether upon the'issues as framed by' the pleadings 'the court erred in entering the judgment which was entered. This action was brought to redeem from a mortgage foreclosure after the year for redemption had expired,, and to cancel and annul said foreclosure sale and sheriff’s deed issued thereunder, and also to redeem from another mortgage held by defendant on the same premises and involves 160 acres of land in Eddy county, N. Dak.'

The findings of fact, as made by the district court, are all in plaintiff’s favor, and such findings fully sustain the allegations of the complaint. AVe shall not set out the findings in this opinion, as no good purpose could be served by so doing. Our conclusion is that the findings sustain the judgment.

Judgment affirmed.

Morgan, C. J., and, Fisk, J., concur. Spalding, J., concurs specially. Ellsworti-i, J., dissents.