Prescott v. Brooks

90 N.W. 129, 11 N.D. 93

• Court: North Dakota Supreme Court
• Decided: July 1, 1903
• Status: Published

Opinions

Young, J.

Plaintiff instituted this action for the purpose of determining the amount due on his two promissory notes, secured by mortgages in favor of one S. W. McLaughlin, upon a tract of land situated in Pembina county. The mortgage first executed secured a principal note for $500, with interest coupons thereto attached. This mortgage was executed on December 2, 1887. The other mortgage was given on December 9, 1889, and secured the payment of a principal note of $880, with interest coupons attached thereto, and covered the same land. Both notes were non-negotiable. The last, or $880, note was given by plaintiff to pay the $500 note. The excess above the amount due on the $500 note was paid to plaintiff by McLaughlin in cash, but the latter did not cancel the $500 note, or release the mortgage securing the same. McLaughlin assigned both mortgages to other parties. The $500 note and mortgage were transferred to one Helen M-. Andrews, and the $880 note and mortgage to the defendant George Brooks. Both were made defendants in the action. No objection was made by either party to the form of the action or to their joinder as defendants. They answered separately, and demanded judgment for the full amount secured by their respective mortgages and a foreclosure of the same. Plaintiff claims that he should have credit for the $500 which was not paid to him from the $880 loan, and demands that the same be credited either upon the $500 note or the $880 note. Helen M. Andrews alleged in her answer that the $500 note had not been paid, and that the mortgage securing the same was a first lien on the premises for the .full amount of the note with interest. Defendant Brooks, in his answer, denied that the $500 note had not been paid, and alleged that S. W. McLaughlin was the agent of Helen M. Andrews for the collection of the $500 note, and that “said mortgage and note alleged to be held by said defendant Helen M. Andrews was fully paid to said S. W. McLaughlin on or about December 9, 1889,” which was the date of the execution and delivery of the $880 mortgage, and asked that his $880 mortgage be declared a first lien on the premises, and that the Andrews mortgage be declared paid and canceled. After issue was joined, but before trial, the defendant Brooks purchased the $500 note, and took an assignment of the mortgage securing the same, so that when the case came to trial he was the owner of both mortgages. The pleadings, however, were not amended. The case was tried to the court without a jury, under the provisions of § 5630, Rev. Codes 1899. The trial court sustained the allegations contained in the answer of Brooks, and found, as a conclusion of law,, “that the giving of the $880 note by the plaintiff to the said S. W. McLaughlin paid and satisfied the said $500 note and mortgage aforesaid, and that plaintiff was entitled to judgment canceling said note and mortgage,” and that defendant Brooks is entitled to “the usual decree of foreclosure and sale on the said $880 note and mortgage,” etc. In accordance therewith a judgment and decree of foreclosure was entered as to the $880 note and mortgage, which judgment also declared the $500 note and mortgage null and void, and directing their cancellation. The defendant Brooks now seeks a review of the case in this court with respect to the $500 rtote and mortgage purchased during the pendency of the action. To this end he caused a notice of appeal to be served on plaintiff, specifying an appeal from that particular portion of the judgment, and also caused a statement of the case to be settled, containing all of the evidence offered at the trial, and containing a “specification of the questions to be tried in the supreme court,” in which he “specifies that he desires the supreme court to review the entire case with respect to the $500 note and mortgage held by the defendant Andrews at the time of the commencement of this action, and assigned to the defendant Brooks by defendant Andrews during the pend-ency of this action, and with respect to the counterclaim set up in the answer of the defendant Andrews upon said note and mortgage, and praying for the foreclosure thereof; said defendant specifies that he desires the supreme court to review the question whether said mortgage has ever been paid. * * *”

Before the case was submitted to this court on the merits, counsel for the plaintiff made a preliminary motion to dismiss defendant’s appeal, upon the ground that the appeal was not taken within the time allowed by law, in this, that “the notice of entry of judgment was served on plaintiff’s counsel on August 4Ü1, 1900, and no appeal notice or appeal bond was filed in the district court of Pembina county until August 7th, 1901.” This motion must be denied. The-facts as to the service of notice of the entry of judgment and filing of notice of appeal and undertaking are as stated in plaintiff’s motion. But it will’ be noted that the service of the notice of entry of judgment relied upon was made by appellant upon respondent, and not by respondent upon the appellant. In fact no notice of entry was served by respondent, and he has taken no steps to limit the time in which appellant might avail himself of his right to appeal. The time within which appeals may be taken to this court is regulated by § 5605, Rev. Codes, which reads as follows: “An appeal from a judgment may be taken within one year after the entry thereof by default, or after written notice of the entry thereof in case the party against whom it is entered has appeared in the action, and from an order within sixty days after written notice of the same shall have been given to the party appealing. * * *” This not being a judgment by default, an appeal could be taken by a party desiring to appeal therefrom at any time prior to the expiration of the one-year period allowed, after written notice of the entry thereof. It will also be noted that as to this judgment the time for appealing did not begin to run from its rendition, nor from its entry; neither did it begin to run from actual notice or knowledge of the entry of the judgment. The language of the statute is explicit. It grants a period which does not expire until one year after written notice of the entry of the judgment in which to appeal. This statute places it in the power of either party to a judgment to set the time for an appeal running against his adversary, by serving upon him a written notice of entry of judgment. But it is clear that by serving such notice a party does not set the time running against himself, and thus limit his period for appealing. His service of notice is to cut off his adversary’s time for appeal. So far as we are able to learn, there is entire harmony in the decisions of courts of last resort in construing statutes like that now under consideration, and the conclusion is general that an appellant’s time for appeal can be cut off or set running only by service of written notice upon 'him, and that does not commence to run against him by his service upon his adversary. Section 9, Ch. 264, Laws Wis. i860, provided that appeals from orders might be taken “within 30 days after written notice of the making of the same.” The supreme court of that state, in construing this provision in Corwith v. Bank, 18 Wis. 563, 86 Am. Dec. 793, said: “We think it is very clear, from the language here employed, that it was not the intention of the legislature to limit the right of appeal from an order to the period of thirty days from the time the party whose rights are adversely affected by it has notice or knowledge of the entry of the order; for if this were the real object and intent of the statute, then it might with propriety be held that verbal notice, or the fact that the party was in court when the order was announced, would be sufficient. But the statute requires that, in order to limit the time for appealing, written notice must be given of the entry of the order. This is a limitation upon the right of appeal, and the prevailing party can set the statute running against his adversary by giving the written notice prescribed therein. He has the whole matter under his control, and can set the statute running when he pleases. The corresponding provision of the New York statute is substantially the same as § 9. In Rankin v. Pine, 4 Abb. Prac. 309, this precise question was presented to the supreme court of the Second district at general term. It was there held that the service of written notice of a judgment or order, in order to limit the right of appeal by the expiration of thirty days (as contemplated by § 332 of the Code of that state), is necessary, even when the appeal is taken from a judgment or order entered by the appellant himself. And when we consider the whole statute, and have regard to the principle that the right of appeal is favored by the courts, we are satisfied that this construction is the one to be adopted. The cases of Fry v. Bennett, 7 Abb. Prac. 352, Leavy v. Roberts, 8 Abb. Prac. 310, Starling v. Jones, 13 How. Prac. 423, and Sherman v. Wells, 14 How. Prac. 522, will be found to have a strong bearing upon the point we have been considering.” See, also, Kilmer v. Hathorn, 78 N. Y. 228; Champion v. Society, 42 Barb. 441; Livingston v. Railroad Co., 60 Hun. 473, 15 N. Y. Supp. 191. It is just to counsel for plaintiff to say that since making his motion to dismiss he has filed a brief stating that after a careful review of the authorities he has concluded that his motion, to dismiss cannot be sustained.

We have reached the conclusion, however, that the retrial which defendant seeks cannot be accorded, for fatal jurisdictional reasons. The case was tried to the court without a jury under § 5630 of the Revised Codes of 1899, and the sole purpose of this appeal is to secure a retrial under said section. The defendant has appealed from only a part of the judgment, and seeks a review in this court of only that portion of the case which pertains to the part of the judgment appealed from. In other words, appellant presents a fragment of a case for our consideration, and asks us to retry that fragment, and finally dispose of the same entirely independent of the remaining portions of the judgment, which, if the position of counsel is sound, remains intact in the district court, unaffected by this appeal. Counsel for appellant state their position in their brief as follows: “With that portion of the judgment which adjudges that the $880 mortgage is valid, defendant finds no fault, and, inasmuch as we have not appealed from the judgment, that portion thereof must stand, as it is elementary law, * * * that the respondent cannot have reviewed, upon the appellant’s appeal from a portion of the judgment, another portion of the judgment adverse to the respondent from which respondent does not appeal.” The question presented is whether § 5630, Rev. Codes, which is the source of the jurisdiction of this court to retry cases, authorizes an appeal from a portion of a judgment and a retrial of a portion of a case in this court. We are of the opinion that it does not. In reaching this conclusion we are materially aided by the interpretation placed by this court upon prior statutes relating to trials de novo in this court. Chapter 82, Laws 1893, which was the original enactment, introduced into the judicial system of this state a new mode of trial in the district court and upon appeal, as to actions tried to the court without a jury, which is unlike anything theretofore existing in this jurisdiction. Under the old system cases were presented upon appeal for the purpose of reviewing and correcting errors of the trial court' solely, and the powers conferred upon this court by an appeal did not extend to an independent review of the case and final determination of the same on the merits. This was changed by direct legislation as to cases tried to the court without a jury. An appeal under § 5630 plainly authorizes and requires this court to dispose of cases brought here under said section upon the merits, regardless of the action of the trial court; and this was also true under the previous statutes, which were, in this particular feature, substantially the same as § 5630, under which the appellant is seeking a retrial. Chapter 82, Laws 1893, required the supreme court to “try the case anew * * * and render final judgment according to the justice of the case.” The same requirements as to retrial and final judgment were embodied in the amended act (§ 5630, Rev. Codes 1895), and in the exact language above quoted. From a brief reference to the provisions of Chapter 5, Laws 1897, now known as § 5630, Rev. Codes 1899, it will be seen that in their general nature and purpose they do not differ materially from those contained in previous statutes, and that under said section this court is required to review the case upon the merits and make a final disposition of the same. In Tyler v. Shea, 4 N. D. 377, 61 N. W. Rep. 468, 50 Am. St. Rep. 660, which was tried under Chapter 82, Laws 1893, plaintiff sought, by an appeal to this court, to secure a modification of a portion of the judgment of the trial court. This court denied the modification, upon the ground that an appeal to this court under that law opened the entire case for investigation. We quote at length from the opinion: “The terms of the act under which the appeal is taken will not permit our mere modification of the‘judg-¡ ment appealed from. We are required by this law to try the case anew upon the same record, and to render final judgment in the action. * * * The appellant could not ask for a new trial of the case With reference to those provisions of the judgment which were against him, and at the same time insist that the balance of of the judgment favorable to him should stand without investigation. When a case is appealed for a new trial, the whole case is open for judicial inspection; and the decision upon such new trial must necessarily be founded upon an examination of the case as broad as that made by the lower court. When a party who has been defeated as to a portion of his claim in a justice’s court appeals for a new trial in the district court, he cannot there insist that the judgment, in so far as it is favorable to him, shall stand, and only the balance of the case, be litigated. The whole case is to be tried anew, and in that trial he runs the risk of losing that which the justice’s judgment gave him. Where the claim is indivisible, and is all in dispute, the appeal for a new trial gives the defendant the same right to be heard on the whole case which it gives to the plaintiff, who appeals. In such a case, the ordinary rule that the respondent cannot complain of those portions of the judgment which are against him, or, indeed, of any portion of the judgment, does not apply, because the appellant, by the nature of the relief he seeks by his appealing for a new trial, opens up the entire case to a second investigation. Indeed, there is high authority for the doctrine that such an appeal, of itself, supersedes the judgment appealed from, and annuls it as effectually as though a new trial had been granted by the court in which it was rendered. These authorities hold that the appeal places the case in the same position as though it had never been tried. The judgment no longer exists for any purpose. Bank v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683; Curtis v. Beardsley, 15 Conn 518; Campbell v. Howard, 5 Mass 376; Sharon v. Hill (C. C.), 26 Fed. 337-345; Earl v. Hart (Mo. Sup.), 1 S. W. Rep. 238; Burns v. Howard, 9 Abb. N. C. 321; Yeaton v. U. S., 5 Cranch, 281, 3 L. Ed. 101; State v. Forner (Kan. Sup.), 4 Pac. Rep. 357.” The authorities cited by the court in the above case entirely sustain its conclusion as to the effect of the appeal. See, also, Irvine v. The Hesper, 122 U. S. 256, 7 Sup. Ct. 1177, 30 L. Ed. 1175; Lewis v. Trant, 9 C. C. A. 54, 60 Fed. 423; Austin v. Carpenter, 2 G. Greene, 131; Robb v. Dougherty, 14 Iowa, 379; State v. Orwig, 27 Iowa, 528. Later, in Christianson v. Association, 5 N. D. 438, 67 N. W. Rep. 300, 32 L. R. A. 730, in which the 1893 law was held to be constitutional, it was said that an appeal thereunder requires “the independent judgment of this court upon the record' presented, irrespective of what the trial court may or may not have held.” The court, speaking through Bartholomew, J., said: “The statute under discussion requires us to render final judgment, and thus, by its mandate, forever terminate the particular litigation. This is such an innóvation upon a practice that is familiar to and well settled in the professional mind that it is received with distrust. But to the legislative mind it doubtless suggested a means of terminating litigation in a manner that should at once possess the strongest probability of absolute justice with the least expenditure of time and money. It avoids the delay and expense of a second trial, and the risk of further errors that might necessitate a second appeal.” Still later, in Nichols & Shepard Co. v. Stangler, 7 N. D. 102, 72 N. W. Rep. 1089, the court, in construing § 5630, Rev. Codes 1895, after pointing out that in this class of appeals this court does not sit for the correction of errors, said, “On the contrary, we are required in such cases to try the case anew upon all the evidence offered below.”

We will now turn to § 5630, Rev. Codes 1899, under which this case was tried and the appeal taken, to ascertain whether said section also places upon this court the duty of reviewing and finally disposing of cases appealed-thereunder, as was required by the statutes of 1893 and 1895. The following provisions of the section under consideration are pertinent: “A party desiring to appeal from a judgment in any such action, shall cause a statement of the case to be settled within the time and in the manner prescribed by article 8, of chapter 10, of this Code, and shall specify-therein the questions of fact that he desires the supreme court to review, and all questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court. Only such evidence as relates to the questions of fact to be reviewed shall be embodied in the statement. But if the appellant shall specify in the statement that he desires to review-the entire case, all the evidence and proceedings shall be embodied in the statement. All incompetent and irrelevant evidence, properly objected to in the trial court, shall be disregarded by the supreme court, but no objection to evidence can be made for the first time in the supreme court. The supreme court shall try anew fhe questions of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire case, and shall finally dispose of the same whenever justice can be done without a new trial, and either affirm or modify the judgment or direct a new judgment to be entered in the district court; the supreme court may, however, if it deem such course necessary to the accomplishment of justice order a new trial of the action. * * * ” Does this section authorize or permit a retrial upon an appeal from a part of a judgment, i. e., a retrial of a part of a case in this court? We are of opinion that it does not. By express language the appeal therein referred to is an appeal from a judgment, and no reference whatever is made to an appeal from a portion of a judgment. We think the express language of the section plainly excludes such an appeal and retrial. This court is required to dispose of the case “whenever justice can be done without a new trial.” Can this court finally dispose of a case when it has secured jurisdiction of only a portion of it ? Clearly not. Again, this section, unlike the preceding statutes, provides the manner in which we shall make such final disposition. We are directed to affirm, modify, or reverse the judgment of the district court, or direct the entry of a new judgment; and when such a course is necessary to the accomplishment of justice, we may order a new trial in the action. Are the provisions just referred to reconcilable with an appeal from a part of a judgment and the review of a part of the -case in this court? We think not. It goes without saying that this court could not affirm, modify, or reverse a judgment over which it had no control. Neither could it grant a new trial in an action where a portion of the judgment remains intact in the trial court. The statute under consideration plainly requires a final disposition of the entire case and an independent judgment thereon at the hands of this court. This command cannot be obeyed while a portion of the case remains in the trial court. A majority of this court has therefore reached the conclusion that an appeal to authorize a retrial under said section must be from the entire judgment; in other words, such an appeal as will effect a transfer of jurisdiction over the entire case to this court. It is true that under the present statute we are not compelled in every case to review all of the evidence, as under former statutes. Whether all or only a part of the evidence shall be reviewed by this court, in this class of appeals, rests with the appellant. He may choose to have all of the evidence reviewed, or he may elect, in preparing his appeal, to abide by the determination of the trial court as to a portion of the facts, and merely ask for a review of the evidence as to certain specified facts. But, whichever course is pursued, the case is presented here for final determination, and upon the merits. In one case it would be determined upon all of the evidence, and in the other upon a portion of the -evidence and those facts found by the trial court which are not challenged.

It will serve no useful purpose to discuss the question whether defendant’s appeal from a portion of the judgment might have been entertained had it been taken solely for the purpose of correcting errors upon the statutory judgment roll, and not for the purpose of securing a retrial under § 5630. It is sufficient to say that no such appeal has been taken or attempted. The defendant demands a retrial under said section and presents a statement of case settled for that purpose, and his appeal has no other purpose than to secure such retrial.

For the reasons stated, we are of opinion that this court is without authority, under the statute, to accord to appellant the retrial demanded. No error is assigned upon the judgment roll proper. It follows that the appeal must be dismissed, and it is so ordered. The dismissal will be without prejudice to another appeal.

Morgan, J., Concurs.