Garbush v. Firey

Christianson, J.: This action was tried to a jury in the district court of Bowman .county, and resulted in a verdict in favor of the plaintiffs. Judgment was entered pursuant to the verdict on September 5, 1914, and notice of entry thereof served upon the attorney for the defendant on that day. A statement of case was prepared, and, [156] pursuant to stipulation, presented to, and settled by, the trial judge on November 10, 1914. Defendant’s counsel obtained various orders for stay of proceedings,' tbe last one being obtained on November 10, 1914. No further proceedings were had until on August 9, 1915, when defendant’s attorneys made an ex parte application for an order extending the time within which a motion for a new trial might be made, and the court thereupon on August 9, 1915, made an order extending the time in which to present a motion for new trial for a period of sixty days. The order of extension reads in part: “This matter coming on to be heard upon the application of the defendant for an order extending the time within which a motion for new trial may be made, and for an order permitting the service of formal notice of motion for judgment notwithstanding the verdict, if required; . . . it is ordered that time within which to present motion for new trial be extended for and during the period of sixty days, and that the defendant be permitted if so advised to file and serve formal notice of motion for judgment notwithstanding the verdict or for a new trial herein, and that the time be extended for a period of thirty days for the doing of any and all things incident to or requisite for the presenting of motion for new trial. . . .” Defendant’s counsel thereafter (without notice to. plaintiffs’ counsel), filed a motion in writing for judgment notwithstanding the verdict or for a new trial upon the grounds stated in the motion for a directed verdict, and on August 23, 1915, the district court entered an order denying such motion. This appeal is taken from such order. The order appealed from contains the following recital: “At the trial of the above-entitled action, the defendant, having moved the court at the close of plaintiffs’ testimony and again at the close of the defendant’s testimony to direct a verdict in favor of the defendant and against the plaintiff, and the court having denied said motion, and having at the time reserved the defendant the privilege of moving the court for judgment notwithstanding the verdict or for a new trial. . . .” Plaintiff’s counsel has moved for a dismissal of the appeal on .the ground (among others) that defendant failed to move for a new trial or take an appeal until more than six months had elapsed from the date of the entry of judgment, and the service of notice of entry thereof [157] upon the attorneys for the defendant. In resisting the motion to dismiss, appellant’s counsel has filed two affidavits. One affidavit is to the effect “that on or about the 13th day of July, a. d., 1914, being a day of the July term of the district court . . . said affiant . . . made a motion in open court in the above-entitled matter for judgment notwithstanding the verdict. . . .” Another affidavit states “that at the trial of the action at the close of the plaintiff’s testimony and at the close of the case (he) moved the court to direct a verdict in favor of the defendant and against the plaintiff; and the court at the time of denying said motion announced that he would reserve to the defendant the right to present a motion for judgment notwithstanding the verdict or for a new trial, and would review the case upon such motion. . . .” While not material to a determination of this motion, it may be stated that the settled statement of case does not sustain the averments of the affidavits presented by defendant’s counsel on this motion. The settled statement shows that the trial court denied the motion for a directed verdict, unreservedly, and in the following words: “The court will deny the motion.” The statement fails to show any motion for judgment notwithstanding the verdict or a new trial. This statement of case was presented to the court by defendant, and pursuant to notice and stipulation, certified by the trial judge to be a correct transcript of the evidence and of all proceedings had upon the trial. (Comp. Laws 1913, § 7655.) Obviously this solemn judicial record cannot be impeached by affidavits in this court. 3 Cyc. 152 et seq.; Heard v. Holbrook, 21 N. D. 348, 131 N. W. 251. But even though it be conceded that the facts are as contended for by defendant’s counsel, we are still of the opinion that the trial court had no authority to entertain-a motion for new trial in this case. Section 7966, Compiled Laws 1913, provides: “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless, the judgment is sooner satisfied.” As no appeal was taken from the judgment, the action, under the provisions of the statute above quoted, remained pending in the district ■court until the time for appeal expired, vizsix months after notice of entry of judgment was seryed upon defendant’s counsel. See Grove [158] v. Morris, 31 N. D. 8, 151 N. W. 779; Higgins v. Rued, 30 N. D. 551, 153 N. W. 389. In Higgins v. Hired, supra, we said: “After the time for appeal had' expired, the action was no longer pending in the district court, and hence-it necessarily follows that that court had no authority to entertain a motion for a new trial in a cause no longer pending therein. . . . Appellant’s counsel concedes that the trial court has no authority to-extend the time in which an appeal might be taken from the judgment. Oan a court do indirectly that which it is denied direct authority to do ? The answer seems obvious. Appellant, in effect, sought to revive the right of appeal from the judgment after the same had ceased to-•exist. The motion for new trial was noticed for hearing, and submitted after the time for appeal from the judgment had expired; hence we are not confronted with a situation wherein notice of motion for a new trial is served within the six-months period after the service of' notice of entry of judgment, and brought on for hearing and submitted within that period, but decided by the court after the expiration thereof, and do not pass upon that question. “We have no hesitation, however, in saying that in a case like the-present, where the motion is served after the expiration of the year-[now six months], the trial court has lost jurisdiction.” Grove v. Morris, 31 N. D. 8, 151 N. W. 779, 780. This language is equally applicable to the case at bar. The mere fact that the trial judge intimated, in denying the motion for a directed verdict, that defendant’s counsel could obtain a review of this ruling by moving for judgment notwithstanding the verdict or for a new trial, does not take this case from under the rule announced in these two cases. Defendant’s counsel concedes that no formal motion for judgment notwithstanding the verdict or for a new trial was made-until August 23, 1915, or almost one year after the service of notice-of the entry of judgment. The ex parte order of extension entered August 5, 1915, and the order denying the motion for judgment notwithstanding the verdict or a new trial entered August 23, 1915, were-both entered pursuant to proceedings had in a cause no longer pending-in that court. In view of the fact that defendant’s chief counsel resides in South Dakota, it may be mentioned that South Dakota has a [159] statute similar to § 7966, Comp. Laws, and the South Dakota supreme court has construed the same even more strongly against defendant’s contentions than this court has been required to do. Bright v. Juhl, 16 S. D. 440, 93 N. W. 648. See also Glaspell v. Northern P. R. Co. 144 U. S. 211, 36 L. ed. 409, 12 Sup. Ct. Rep. 593. The record in this case shows conclusively that this court is precluded from considering the various assignments of error challenging the correctness of the order appealed from. A decision on the merits of the appeal, therefore, would be merely a restatement of the conclusions stated above. Such decision could not possibly benefit either party to the litigation. Under such circumstances it would be useless to require the parties to go to the expense of presenting the merits of the appeal, and, hence, the appeal will be dismissed. Re Kaeppler, 7 N. D. 307, 75 N. W. 253. See also Re Heldt, 98 Cal. 553, 33 Pac. 549; Saxon v. Hardin, 29 Okla. 17, 118 Pac. 264. The appeal is dismissed.