Rabinowitz v. Crabtree

Bruce, J. (After stating the facts as above). This is one of the unfortunate cases of delay which would appear to be largely due to the laxity of conduct which must inevitably arise under a procedure where a transcript is deemed to be necessary in order that a motion for a new trial may be passed upon, and in a district where the stenographer is totally unable to keep up with the work of the court, so that extensions of time must necessarily be obtained in practically all cases, and are so common that motions for a new trial within the statutory period are of but rare occurrence. We cannot help but feel that counsel for appellant and defendant was negligent. In other words, that he should have obtained an extension of the order of suspension which was obtained immediately after the trial, and which was limited to sixty days. His client, too, certainly must be presumed to know the law, and that a motion for n [139] new trial must be made within the sixty days prescribed by the statute unless an extension of time is had. He must also be presumed to know of the sixty-day extension and of the expiration thereof. It is clear also that no specific order for the transcript was ever made, nor was the deposit forthcoming which was necessary before the stenographer would commence work thereon. It is quite clear that if such an order had been entered, and although the work would not have been commenced thereon until the middle of July, such transcript would probably have been completed prior to the levy of the execution, which was on the 8th day of August, 1913, though not within the sixty-day period of suspension. The question before us is whether the trial court abused its discretion in refusing to consider the affidavits relating to the merits of the motion for a judgment notwithstanding the verdict or a new trial, and in refusing to extend the period of suspension already granted, so as to allow the transcript to be obtained and the motion for a new trial to be properly passed upon. We do not think that it did, as the affidavit of the stenographer conclusively shows that no order for a transcript was made and no deposit of the money necessary was ever made or offered. Any other rule would interfere greatly with the expedition of business, and add much to the delay and burden of litigation. The knowledge of the attorney in matters of procedure must as a general rule be imputed to the client, as any other rule would allow the continuing of any case, and the endless prolongation of litigation. We do not say that if the motion had been granted we would have interfered with the court’s discretion in the premises, but we must presume that the trial court exercised its best and wisest discretion; that it was conversant with the case which had been recently tried before it, and that it was not of the opinion that any injustice had been done and that any relaxation of the rules was necessary. It is true that § 6884, Rev. Codes 1905, § 7483, Compiled Laws of 1913, provides that the court may allow any “act to be done, after the time limited by this Code, or by an order enlarge such time; and may also, in its discretion and upon such terms as may be just at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.” There was, however, no surprise in this case as far as defend [140] ant’s counsel was concerned, and it would be extending the law too far to say that a client is surprised who, though knowing that a transcript must be obtained, makes no personal effort to obtain the same or to deposit the money therefor, and who by appointing the attorney as his agent to make the motion and to perfect the appeal, if necessary, must have intrusted him with the necessary negotiations. We must remember that this is not a case like that of Citizens’ Nat. Bank v. Brandon, 19 N. D. 489, 27 L.R.A.(N.S.) 858, 126 N. W. 102, where no trial had been had and where a default was sought to.be set aside, but one in which a trial was had and a verdict rendered. It is true that the affidavits disclose the fact that defendant’s counsel was laboring under the honest belief that the court stenographer would not reach the transcript in question for a period of six months. This fact, however, would hardly justify the failure to apply to the court for an extension of the sixty-day order for the suspension of the proceedings. There must be some end to litigation, and trial courts must have some reasonable control over their calendars. The general rule seems to be that, unless there is a grave question whether the discretion of the district court has been soundly exercised, it will not be disturbed. Smith v. Hoff, 20 N. D. 419, 127 N. W. 1047; Woods v. Walsh, 7 N. D. 376, 75 N. W. 767; Moe v. Northern P. R. Co. 2 N. D. 282, 50 N. W. 715; McGillycuddy v. Morris, 7 S. D. 592, 65 N. W. 14. We, too, must remember that the court reporter positively swore that he “reached said transcript, and was in readiness' to transcribe the same on or about the 1st day of July, 1913,” — some two or three days after the stay of the execution had expired, — ’’and at or about said time secured the stenographic notes from the files of the clerk of said court, and thereupon called the said C. S. Buck over the telephone between our offices within the city of Jamestown, North Dakota, and at said time so informed said O. S. Buck that affiant was ready to prepare transcript of said case upon C. S. Buck making a propér deposit to cover the cost of preparation of the same, and then and there informed said O. S. Buck that under the 1913 new practice act, the estimate of the said transcript would be the sum of $75, and that affiant would not commence the preparation of said transcript until the same was placed in my hands or on deposit on my account, whereupon said O. S. Buck stated in effect that he did not believe his client, the [141] defendant herein, would order the transcript if the cost was to be in snch an amount, and that he would confer with him, and, should he desire affiant to prepare said transcript, said C. S. Buck would further notify affiant to that effect; and that affiant has never received any other or further order for said transcript, and has never at any time received in hand or on deposit from said defendant, or his counsel, any money as compensation for the preparation thereof; and”that affiant retained said stenographic notes in said case for some weeks thereafter, after the said telephone communication with said C. S. Buck, and not having received any further notice relative to the preparation of said transcript, ■ affiant on the 18th day of July, 1913, returned the stenographic notes in said case back to the files of the clerk of said court, and took it for granted that no transcript in said action was desired, and affiant noted the date of returning of said stenographic notes to the clerk’s files, and the matter with reference to the ordering of transcript as a memorandum for further reference, if necessary; and affiant, in the preparation of this affidavit, has made reference to such memorandum ; that at the time of the said telephone communication with O. S. Buck, affiant also stated to said Buck the estimated cost for a single copy of said transcript.” These facts are not disputed by Mr. Buck, nor by his partner, Mr. Jorgenson. The only conversations that Mr. Jorgenson, in fact, swears to or about are those held personally between him and the court reporter, and the first of these was held August 9th. Mr. Buck also makes no reference to the conversation of July 1st which was sworn to by the reporter, McFarland, and neither affirms nor denies the reporter’s affidavit in relation thereto. This being the state of the record, we hardly have a case where this court would be justified in interfering with the discretion of the trial judge, and it is only in the case of a clear abuse of discretion that we have any right to interfere. The trial court could certainly well infer from the affidavits that were filed, that the defendant’s counsel had purposely refrained from ordering the transcript, and from taking the necessary steps to obtain a hearing upon the motion. The order appealed from is affirmed.