Bergh v. Hellickson

177 N.W. 506 | N.D. | 1919

Birdzell, J.

The plaintiff brings this action to recover possession, or the value, of three hogs which he claims strayed from his farm in the month of May, 1918, and which thereafter came into the possession of the defendants. The defendant Stavens is the owner of a large farm situated in the vicinity of the place from which the plaintiff’s hogs strayed, and the defendant Hellickson is his foreman. This action came on for trial on February 18, 1919, in the district court of Steele county. At the commencement of the trial the attorney for the defendants made an application for a continuance on the ground that one of his clients, Hellickson, was absent from the state under the following circumstances, as set up in the affidavit: The defendant Hellickson had conferred with his attorney on February 5th, at which time he was apprised of the date of the trial, defendant stating that-he would be present at such time. That on the day before the term convened, to wit, on February lYth, affiant called Hellickson by telephone, and was informed by his sister that the former had gone to Minneapolis two days before on account of illness in his family, but that he had expected to return on that day; that affiant again called on the following day, the day of the trial, but defendant had not returned. Defendants’ counsel asked either for a continuance or that the action be placed at the foot of the calendar to enable him to communicate with his client. This application was denied and the case proceeded to trial. Defendants’ counsel, however, produced no witnesses to testify to their version of the facts the only witness sworn for the defendants being the plaintiff himself, who was called for cross-examination. The jury, under the evidence and under proper instructions from the court, returned a verdict for the plaintiff for the full amount claimed. There is error, however, in the verdict in that the jury purports to relieve the defendant Hellickson from liability for a portion of the sum found against the defendants, when, under the charge of the court and under the law, Hellickson was necessarily liable for any sum for which Stavens might be found liable. But this is error of which the defendants cannot complain.

A motion for a new trial was made, supported by affidavits going to establish the following additional facts, with some of which the defendants’ attorney and the defendant Stavens were not familiar at the time of the trial, and which apparently excuse any seeming neglect on their part to be ready to proceed with the trial.

It seems that during the epidemic of influenza in November, 1918, the defendant Hellickson lost his wife, his mother, and his only child, a daughter, within ten days’ time; and that his depressed condition for a considerable period of time after this shock rendered him more or less incapable of properly attending to his affairs. That on account of Hellickson’s familiarity with the farm, of which he was foreman, Stavens placed principal reliance upon him, both as to the facts and as to advice concerning the date of the trial; that Stavens was not notified of the date of the trial at all; and that the defendant Hellick-son’s depressed mental condition was aggravated by the news he received February 15 th of the serious illness of his late wife’s sister. These facts were not all before the trial court at the time the court ordered the trial to proceed, but, as above indicated, were incorporated in the affidavits presented upon the motion for a new trial.

In these circumstances, we think the new trial should have been granted, upon condition, however, that the defendants pay the costs incurred in the trial court to the date of the motion; and such is the order of this court. The costs of this appeal will abide the event of a new trial.

Christianson, Oh. J., and Grace and Bronson, JJ., concur. Robinson, J., dissents.