Heald v. Strong

138 N.W. 1114, 24 N.D. 120, 1912 N.D. LEXIS 15

• Court: North Dakota Supreme Court
• Decided: October 4, 1912
• Status: Published

Opinions

Fisk, J.

Defendant bad judgment in tbe court below, and plaintiffs have appealed, both from sucb judgment and from an order denying tbeir motion for a new trial. On motion of respondent tbe appeal from tbe order was dismissed upon tbe ground that tbe same was not taken witbin sixty days after tbe making and service of sucb order. Sucb order was made April 7, 1911, and a copy thereof served upon appellants’ attorney on April 8tb, and tbe appeal from sucb order is dated June 13tb, and was served on June 15, 1911. Tbe statute (§ 7204, Rev. Codes 1905) limits tbe time for taking an appeal from an order to sixty days from tbe time written notice of sucb order shall have been given to tbe party appealing. Tbe appeal from sucb order was therefore ineffectual.

At tbe outset we are confronted with a practice questioned. At. the date on which this cause was set for argument, respondent’s counsel, on due notice theretofore given, made a motion in this court for an order striking tbe settled statement of tbe case from tbe record on tbe following ground:

“1. That tbe same was not settled witbin tbe time allowed by law.

2. That no just cause of action or reason existed for tbe extensions of time witbin which to prepare or settle tbe statement of tbe case.

3. That tbe appellants wilfully neglected to prepare tbe proposed statement of tbe case, or to settle tbe statement of tbe case witbin the time allowed by law.

4. That tbe extensions of time with in which to prepare or settle tbe statement of the case were improperly allowed, and that tbe extensions so granted were erroneous, because from tbe record it appears affirmatively that tbe failure to prepare or serve tbe statement of tbe case or have tbe same settled earlier was due to tbe wilful neglect of the said appellants.”

The record discloses that the case was tried and judgment rendered in the month of June, 1910. The statement of the case was not settled until March 6, 1911. On August 31, 1910, appellants’ counsel applied for, and received from the trial judge, an extension of sixty days from and after such date in which to settle a statement of the case. The showing offered as a basis for such order seems to have been sufficient and its sufficiency is not challenged.

Again, on October 25th, upon a similar showing, appellants’ counsel applied for and received a further extension of such time of sixty days from and after such date.

Again, on December 5th, plaintiff presented an affidavit to the trial judge stating that he had just received an official transcript of the testimony from the court reporter, and also stating that the same is a large one and contains many exhibits, and that it will require a great length of time in which to prepare a proper statement of the case, whereupon an order was made extending the time for the period of ninety days from and after December 25th. Such order was filed on January 10, 1911, in the clerk’s office.

Again, on the 24th day of February, 1911, another similar application was made for an extension of such time up to and including March 8, 1911, which was granted by the Honorable E. T. Burke, the trial judge, but who, in the month of January preceding, ceased to be the presiding judge in said judicial district and qualified as judge of this court. As a basis for such order appellants’ attorney presented- an affidavit stating, in substance, that immediately upon ascertaining the result of the verdict in said cause, he ordered a transcript of the evidence for the purpose of settling a statement of the case and of moving for a new trial; that on or about the 1st day of January, 1911, he received such transcript, which was the earliest date according to his best information and belief at which he could procure the same; that immediately thereafter he commenced the preparation of such statement, but that during a portion of such time his stenographer was called away on account of sickness, and that during a considerable portion of the time after the commencement of such work his family were seriously ill, which rendered it impossible for him to give his attention to such work, but that he had proceeded with due despatch and as rapidly as possible, completing the proposed statement on February 5, 1911, •on which date he served the same upon respondent’s counsel, the latter accepting service thereof on February 6th. Thereafter, and on February 18, 1911, respondent’s counsel served many amendments to such proposed statement, which required two days’ time in which to examine and compare the original transcript therewith. He also stated that ten days’ additional time was requisite in which to serve notice of an application to have such proposed statement settled. Thereupon an •order was made by the said trial judge extending the time to March 8, 1911, in which to have such statement of the case settled.

Again, on March 8th, two days after such statement was settled, an application was made to the Honorable Charles F. Templeton, judge ■of the first judicial district, for an extension of such time to and including March 25th thereafter, which application was granted upon a showing substantially the same as that made to the Honorable E. T. Burke at the time the last extension.was granted, and also setting forth the fact that at the time Judge Burke settled such statement on March 6th, objection was made upon the ground that no jurisdiction was vested in Judge Burke to grant such extension of time for the reason that he had at that time ceased to be the judge of the fifth judicial district, wherein such cause was tried, and a proper showing was also made that his successor, Judge Coffey, as judge of the fifth judicial district, was absent from the state.

At the time of the application for the settlement of the statement of the case, the following objection was made and overruled and an exception allowed, which objection was as follows:

“The defendant objects to the settlement of the statement of the case in the above entitled action, (1) because no proper extension of time has been granted by the judge of said court extending the time to or beyond March 6th, 1911, within which to prepare or settle such statement of the case; (2) no good cause in the interest or furtherance of justice has been shown under or by virtue of which the plaintiffs are entitled to the settlement of the statement of the case at this time, and no cause exists therefor; (3) that said statement of the case could readily have been settled long prior to tht 1st of January, 1911, by the use of reasonable diligence. These objections are based on the records and files and the annexed affidavits.

“Wherefore the defendant prays that the motion of plaintiifs to settle the statement of the case be herein dismissed.

“Dated March 6th, 1911.”

In support of such objections the following affidavits were presented by respondent’s counsel:

“John C. Lowe, being first duly sworn, deposes and says that he was,, during all the year 1910, the official stenographer of the fifth judicial district, and as such stenographer caused the taking of the testimony of the witnesses in the above entitled matter, by Miss Getrude McConnell, affiant’s assistant. That Hon. T. F. McCue was one of plaintiffs’ attorneys in said action. That said McCue told affiant, soon after the trial of said action, that he would want a transcript of the testimony in said action, and asked what the same would cost; that affiant caused said McCue to be immediately notified of the cost thereof. Some weeks later affiant met said McCue and he (McCue) informed affiant that he had forgotten the amount, and that if affiant would again notify him thereof he would send a check therefor. That affiant immediately notified him again of the amount, but did not hear from said McCue again relative thereto. That said McCue was informed by affiant, and well knew that affiant required payment for transcripts to be made in advance, as provided by statute. That said McCue did not furnish the payment, but on November 5th we received a letter from A. W. Heald in which he stated that he had received a letter from Mr. McCue-asking that $150 be sent to him to pay for' this transcript, and Mr. Heald also said at that time (November 5th, 1910) : *1 wish you to-draw on us for the amount of this, and we will pay the draft.’ On receipt of the letter, or soon thereafter, Miss McConnell commenced the transcript for the first time. On November 29th, 1910, we received another communication from Heald saying that McCue was no longer retained by them. We did not feel at liberty to write this transcript without having our fees in advance.

“That the only reason why said transcript was not prepared and sent plaintiffs or their attorney sooner was the failure of the plaintiffs-to forward the money therefor in accordance with my rules, and § 484,, Eev. Codes 1905.

“On November 5 th, 1910, we wrote the plaintiffs the following letter:

“Replying to your letter of November 5th, will state that we require in all cases a deposit of the estimated cost before starting to write a transcript. Therefore, I have not started on the case of Heald & Klein-man v. Strong, but I think I can furnish you the transcript about the second week in December. As per your request, I am drawing on you to-day for the estimated cost of $150.

“John C. Lowe.

“Subscribed and sworn to before me this 22d day of February, 1911.

“Omon B. Herigstad,

(Seal.) “Notary Public.

“A. L. Knauf, being first duly sworn, deposes and says that a copy of the transcript of the evidence in the above entitled action was furnished affiant by the then court stenographer of said district on December 12th, 1910, and that the same could have been furnished affiant long prior to that date had the original thereof been ordered under the rules of said stenographer and the law of North Dakota relative to stenographers of the district court. That said action was tried and verdict rendered at the June, 1910, term of the district court of Stuts-man county, North Dakota; that notice of entry of judgment was served on Hon. T. P. McCue, attorney for plaintiffs, on or about the 23d day of June, 1910. That at the same term of court, several days subsequent thereto, affiant tried a court case, McCurdy v. Williams et al., the same stenographer taking the testimony in said court case as took the testimony in the above entitled action; that no decision was rendered in the said court case until the last day of November, 1910; that affiant immediately ordered and secured a transcript of the. testimony prior to December 12th, 1910, in such court case, and that such transcript contained at least seventy pages more of typewritten matter than that contained in the Heald and Kleinman v. Strong action. That, had the transcript been ordered and fees paid promptly by the said plaintiffs, plaintiffs conld bave procured such transcript of testimony long prior to the 1st day of November, 1911.

“A. L. Knauf.

“Subscribed and sworn to before me this 4th day of March, 1911.

“John Knauf.”

No counter showing was made by appellants’ counsel. On the foregoing facts we are called upon to decide the motion to strike such statement of the case from the record on this appeal.

While it appears from such showing that appellants’ counsel did not proceed in the settlement of such statement with that degree of diligence which he could and perhaps should have proceeded with, still we are not prepared to say that the trial judge, as well as Judge Temple-ton, clearly abused the discretion vested in them in granting the various extensions of time. Trial judges rightfully possess a broad discretion in these matters, and the exercise thereof will seldom be interfered with by this court, and never except in cases of manifest abuse of such discretion. It does not appear that the delay was occasioned through bad faith or with any intent to gain an advantage over or to injure the respondent in any way, and in the light of the prior holdings of this court in such cases, we have concluded that the motion should be denied.

This brings us to the merits. Appellant has assigned thirty-one alleged errors, but in view of the rule announced in Hedderich v. Hedderich, 18 N. D. 488, 123 N. W. 276, and cases therein cited, those assignments based upon alleged insufficiency of the evidence cannot be considered on this appeal, as these same matters were urged and passed upon on the motion for a new trial made after the entry of the judgment, and the order denying such motion, not having been appealed from, is, as to such objections, res judicata.

Assignments numbered 1 to 7 inclusive, and also all others not predicated upon alleged errors of law occurring at the trial, must be disregarded.

Before noticing the alleged errors of law complained of, a brief statement of the facts is deemed advisable. It is alleged in the complaint that on March 3, 1909, plaintiffs purchased certain land of defendant and the latter took a stock of goods in exchange therefor, and that, as part payment for tbe stock of goods, defendant sold and de livered to plaintiffs a promissory note for $1,422 executed by one Christianson and secured by a chattel mortgage covering an undivided one half of the crops to be raised during 1909 on certain described land. Plaintiffs first cause of action is predicated upon an alleged false and fraudulent representation by defendant that such chattel mortgage constituted the first and only lien upon such crops, whereas defendant in fact held a prior lien thereon by virtue of a lease or cropping contract between himself and Christianson, and that such prior lien rendered plaintiffs’ security under such mortgage wholly worthless. They allege the insolvency of C., and that the note is and was of no value, but that it would have been worth its full face value had it been secured as represented by defendant. The answer puts in issue such alleged representations, and it is therein alleged that plaintiffs were fully informed of the existence of such prior lien held by him.

For a second cause of action plaintiffs allege that as to one quarter of the land sold by defendant to them there were 13 acres less than had been represented, and that, at the agreed price paid for such laird of $30 per acre, plaintiffs paid to defendant and he received from them the sum of $390 more than he was entitled to receive. This is also put in issue by the answer.

By way of counterclaim defendant alleged that the stock of goods transferred to him by plaintiffs for such lands, note, and other consideration was, by plaintiffs, represented and warranted to be in a strictly first-class and salable condition, and that such goods were all of like kind and quality as certain boxes of new goods then in Minneapolis, and which were exhibited to him by plaintiffs. That fully relying on such representations and warranty, he was induced to enter into such deal. Then follow allegations of a breach of such representations and warranty and of plaintiffs’ knowledge thereof and of resulting damages. These allegations were put in issue by a reply to such counterclaim.

Such were the issues submitted to the jury at the trial, and said jury returned a verdict in defendant’s favor for the sum of $1,000. The court’s instructions to the jury are not before us and they are in no way challenged. The only assignments of error to be noticed are therefore those relating to certain rulings admitting and excluding testimony.

We will proceed now to a consideration of such of these assignments .as are discussed in appellants’ brief.

By the 8th assignment appellants complain of the ruling permitting defendant to testify to the effect that he told the plaintiff Heald, at the time the deal was made, that the chattel mortgage securing the note for $1,422 was subject to the provisions of the rental contract between him and Christianson relative to a lien on Christianson’s interest in the crops for advancements. At least two answers to such contention may be made. In the first place, the same matters embraced in' the questions and answers objected to were, immediately prior to asking such questions, fully covered by defendant without objection. Hence, if error at all, such rulings were nonprejudicial. Second, we are clear that such rulings were proper, as such testimony did not in any way tend to vary the terms of a written contract as contended for by appellants. Counsel for appellants criticizes the holding of this court in McFadden v. Thorpe Elevator Co. 18 N. D. 93, 118 N. W. 242, and also attempts to differentiate the case at bar from that decision. We see no reason, however, to depart from the views there expressed, nor do we concur in the contention that the rule there adopted is not applicable here. Indeed, it would be strange if defendant could be precluded from showing the actual contract which these parties entered into, when con-cededly such contract rested in parol. If, as between the original parties to this mortgage, it was understood and agreed that it should be held subject to the security clause in the cropping contract covering advancements, certainly it was competent for defendant by express agreement with Heald, to assign the same on condition that he should hold it in exactly the same way, and such is the purport of the testimony complained of. We find no error in such ruling.

The remaining assignments which are in any manner discussed in the briefs all relate to rulings on the admission or exclusion of testimony introduced to establish defendant’s counterclaim, such testimony all relating to the question of the damages sought to be recovered under such counterclaim. To some extent these assignments have a close relation to those involving the sufficiency of the evidence, and they are, as stated by counsel, treated in appellants’ brief only in a general way. In. view of tbis, we feel justified in disposing of them in a like manner in this opinion. While the method pursued by defendant’s counsel in proving such damages was perhaps not technically correct in every particular, we are satisfied that the testimony as a whole afforded a sufficient legal basis for the jury’s assessment of damages, and that to the extent, if any, that such rulings constituted error, such error was nonprejudicial to the substantial rights of appellants, and we are convinced from the entire record that substantial justice was meted out to these parties in the district court. Entertaining these views it follows that the judgment must be, and accordingly it is, hereby affirmed.

Bueeb, J., being disqualified, did not participate.