Brainard v. Wetzstein

Per Curiam. Plaintiff has appealed from an order of the district court reinstating an appeal from the justice’s court. The facts are: Plaintiff instituted an action in the justice’s court to recover upon an indebtedness of about $150. Defendant defaulted. A garnishee in the action appeared and filed an affidavit denying liability. Plaintiff took issue with the garnishee. The garnishee proceeding was continued for a day certain in justice’s court. Upon the day of trial the garnishee did not appear; whereupon the justice rendered judgment against the garnishee. This garnishee appealed to the district, court from the judgment in garnishment and demanded a trial de novo in the district court. TVlien the cause was on the calendar of the district court, plaintiff, in November, 1922, filed an affidavit of prejudice against one of the district judges and this court, pursuant to the statute, designated another district judge to hear the cause. The cause went over until the January, 1923 term. Then, it was continued until the February, 1923 term. At that term the cause was set for trial on February 23d, 1923. Then it was discovered that the justice of the peace had not certified his record to the district court. Then the trial court dismissed the appeal for the reason that the justice’s record had not been sent up and that more than eight months had elapsed since the appeal was filed without any showing that the statutory fee for sending up the record had been paid the justice of the peace. (The record before this court does not disclose any motion made by plaintiff for such dismissal.) [740] .Pursuant to tliis order, a judgment was entered dismissing tlie appeal together with costs. Within a few days thereafter, the garnishee, the defendant herein, made a motion to set aside the order of the trial court for the reason that the garnishee had been afforded no opportunity to procuro the files and records from the justice’s court and that no notice of motion of dismissal had been served upon them prior to the time of making the motion in district court. This motion was supplemented by an affidavit to the effect that the garnishee’s attorney had no knowledge that the record of the justice had not been certified and that if the trial court had given him an opportunity to procuro the record from the justice it could have been procured within an hour. This motion was heard before the district court in April, 1923. At that time the garnishee, pursuant to a showing made by letter, had ordered the record to be sent by the justice and had paid to him his fee therefor. The trial court, on July 18th, 1923, ordered, pursuant to the motion made, that the action bo reinstated, be placed upon the calendar of the court at the next term, and be tried anew. Plaintiff has appealed from this order. lie contends that the motion made was to vacate an order which had already been merged into the judgment; that, hence, the motion was ineffectual. Further, that the trial court had no authority to vacate the judgment or to reinstate the appeal for the reason that this simply permitted the trial court to review merely an error of law. Upon the record we are of the opinion that the contentions made are without merit. When the garnishee perfected his appeal by filing proper papers therefor with the clerk, the district court was possessed of jurisdiction over the cause. It was then the duty of the justice, after notice from the clerk, to certify his -record as required by statute. Comp. Laws 1913, § 9170. See also 3548, Comp. Laws 1913; Haessly v. Thate, 16 N. D. 403, 114 N. W. 311. In this record it does not appear up to the time when the trial court dismissed the appeal that the failure of the justice to certify the record was on account of nonpayment of any fees or by reason of any demand made therefor. Further, it does not appear that up to that time any of the. parties were aware that the record had not been certified by the justice. Upon the facts at the time of such dismissal it was proper for the trial court to make its order requiring the justice to transmit the record unless the omission of, or the negligence of the garnishee obviated the requirement [741] and necessitated a dismissal. See Haessly v. Thate, supra; Saunders v. Harris, 24 N. D. 236, 139 N. W. 325. Hnder the circumstances the garnishee was entitled to make a showing concerning his inadvertence or excusable neglect and in our opinion it was within the discretion of the trial court to reinstate the appeal. Comp. Laws 1913, § 7483. He did make a showing sufficient to invite the discretion of the trial court. Hpon the facts the motion made may well he considered a motion to reinstate the appeal and we are not inclined to disturb the discretion of the trial court simply because appellant’s motion was not drawn in technical language as a motion for a reinstatement of the appeal. In this procedural matter, it is well to observe the rule that substance is more to be regarded than form, particularly when its application aids in the administration expeditiously and prejudices no real rights of the parties. The order is affirmed with costs. Bronson, Ch. J., and Christianson, Birdzell, Nuessle, and Johnson, JJ., concur.