People's State Bank v. Lee

Burke, J. This is an action to foreclose a mortgage. When the ease was called for trial, a jury was called to act in any advisory capacity, and returned a verdict for'the defendants, which verdict was approved by the court, in findings of fact, and conclusions of law, and judgment was duly entered thereon. *44 Thereafter the plaintiff upon notice, moved the court for an order permitting plaintiff to open the case for the purpose of introducing in evidence an affidavit by the defendant, and at the same time moved the court to set aside the judgment entered in said action, and to make findings of fact and conclusion of law in accordance with findings of fact, and conclusion of law, prepared by the plaintiff and submitted to the court with the motion. The motions were denied by the court and plaintiff appeals from the judgment and from the order denying plaintiff’s motion to vacate the judgment to open the case and admit the affidavit of the defendant, and asks for a trial de novo. The first question arises over defendant’s motion to dismiss the appeal. First, to dismiss the appeal from judgment for the' reason that said judgment was entered December 3, 1924, notice of entry thereof was given December 4, 1924, and the appeal was not taken until the first of November 1925, eleven months after the notice of entry of judgment. The appeal from the judgment was not taken within six months from the date of giving notice of the entry of said- judgment, the statutory time, and therefore the defendant’s motion to dismiss the appeal from the judgment must be granted. King v. Hanson, 13 N. D. 85, 99 N. W. 1085; Grove v. Morris, 31 N. D. 8, 151 N. W. 779; Higging v. Rued, 30 N. D. 551, 153 N. W. 389; National Union F. Ins. Co. v. Martin, 41 N. D. 393, 170 N. W. 880. Second, it is the contention of the defendants that the appeal from the order should be dismissed for the reason, that the order is not appealable, and second for the’■ reason, that the case was. not tried to the court without a jury, and there are no specifications of error as required in cases triable to a jury- It is the settled law in this state, that when a jury is called to sit even in'an advisory capacity in an equitable action, that such trial is not a trial without a jury, and that in such case the parties are not entitled on appeal for a trial de novo, and since there are no assignments of error and the court cannot try the case de novo it follows that the appeal must be dismissed. It-is so ordered. ■ Birdzele, Ch. J., and Nuessle, Christianson, and Burr, .JJ., concur.