140 N.W. 231 | N.D. | 1913
Lead Opinion
(after stating the facts as above). We must remember that the real controversy in this case is not a controversy between the respective counsel, but between their clients, and that the province of this court is not to act as umpire in a fair fight between such counsel, but to see that justice is ultimately done to the litigating parties, and
It' may be said that the defendant may redeem from the executions. Even then he would be compelled to bring suit for the recovery of the money so paid, and not only might the question be raised that the payments were voluntary, but, according to some of the affidavits in this ■case, a collection of the judgments on such suits would be problematical. This court has, in the past, exercised its discretion in the control of its ■calendar. It has, for instance, in cases where counsel from certain towns or localities have had a number of causes upon the calendar, .and by having a number of such argued at one time, the necessity of frequent journeys to the capital has been able to be avoided, allowed such causes to be argued out of their order. If this court can accommodate counsel, it certainly ought to be able to accommodate litigants themselves. Calendars and rules are made for litigants, and not litigant’s for calendars and rules. When a permissible exercise .of discretion will result in administering justice, while a denial of its exercise will work injustice, we should resolve the question in favor of a just result, rather than stand on ceremony concerning the formal method used in reaching the desired end.
It is argued that the defendant in this case could go into a court of ■equity and enjoin the levy of the executions. Whether this could be done or not, we do not say, but even if it could be done, it would necessitate three other lawsuits, and, perhaps, three other appeals, the expense and delay of all of which can be obviated by the simple expedient •of advancing the causes upon the calendar.
It is also contended that the appeals have all been dismissed “by operation of the mandate of this court made on a former motion to dismiss” (Burger v. Sinclair, post, 326, 140 N. W. 235), to the effect that “respondent’s motion to dismiss said appeal is denied on condition, however, that appellants, within twenty days from the date of this order, file with the clerk of the supreme court an undertaking for costs in compliance with the statute, with sureties to be approved by the clerk of the district court,' and that, unless such condition is
Plaintiff’s and respondent’s counsel insists that though cost bonds were filed, two of them were insufficient in form, and that they were not filed long enough prior to the expiration of the twenty days to allow an exception to and justification of the sureties. On account of these defects he alleges that the order has not been complied with, and the appeals have therefore been dismissed by operation of law. We do not think that there is any force in either of his contentions. There can be no doubt that, under the order of the court, he was entitled to insist upon a justification of the sureties. The order, however, did not provide that this opportunity for justification should have been afforded within the twenty days. All that the order provided was that the bonds should be approved by the cleric of the district court ioithin that time, and this was done. Two of the bonds were defective in that, evidently through a mistake of the stenographer, the word “plaintiff” was used instead of “appellant,” the bond reading, “Now, therefore, we do hereby undertake that the said appellant will pay all costs and damages which may be awarded against plaintiff on said appeal.” Defendant was the appellant, and therefore the use of the word “plaintiff” was incorrect. This mistake by no means invalidated the bonds, as the intention of the parties was elsewhere in the instrument, and, by the instrument as a whole, made perfectly clear. Schill v. Reisdorf, 88 Ill. 411; Hilbish v. Asada, 19 N. D. 684, 125 N. W. 556. There was, also, in each of the bonds, an additional promise and obligation which was, in itself, abundantly sufficient, and operated as a bond. It was to the effect that the sureties did “also undertake in the sum of $900 that if the said judgment so appealed from, or any part thereof, is affirmed, or said appeal is dismissed, the said appellant will pay the amount directed to be paid by the said judgment, or any part of such amount as to which said judgment shall be affirmed, if it is affirmed only in part, and all damages which shall be awarded against said appellant on said appeal not exceeding the aggregates of the amounts above mentioned.” This latter undertaking was abundantly sufficient to secure to the respondents their costs, and even if we held that the erroneous use of the word “plaintiff” invalidated
We are of the opinion that the causes should be advanced. It is so ordered.
Dissenting Opinion
dissenting. I cannot concur in a decision which seems to be supported by apologies, rather than reasons. The right to appeal is purely statutory. The legislative assembly has prescribed the terms and conditions upon which an appeal may be taken. It has likewise provided the method whereby a judgment of the district court may he stayed on appeal. It is incumbent upon the appellant to substantially comply with the requirements imposed upon him by the legislature. The courts have not been empowered to prescribe these terms and conditions. They can' only determine whether they have been complied with. The appellant in this case deliberately and intentionally appealed without making provision for the statutory stay bond. His attention was called to the fact that he had not done this, and he advised counsel for respondent that he did not intend to do so. Great-delay was had in perfecting his appeal and in getting into this court. Judgment was entered in favor of plaintiff on the 29th day of June, 1911. Time was extended and execution stayed to enable defendant to settle a statement of the case, until December, 1911, and a motion for a new trial was denied on the 20th of February, 1912. .The appeal was not taken until March 27th, 1912. An imperfect cost bond on -appeal was filed, with no stay bond. The defendant rested in security by reason of the stay of execution and extension thereof which had been granted him until more than a year had elapsed from the entry of judgment, when, in July, 1912, and after the district court had lost jurisdiction, application was made to a member of this court that defendant be allowed to file a bond or undertaking upon appeal for' the purpose of securing a stay of execution, and for the approval of a
If tbe matter was one for tbe exercise of tbe discretion of tbis court, the conclusion reached might be justified, but if not, I see no excuse for permitting tbis indirect method of evading and avoiding tbe terms and conditions of tbe statute, as construed in our decision denying appellant tbe relief asked on tbe former application to which I have referred. I' see no reason why, by indirection, be should in effect be given tbe same relief there denied. A petition for rehearing on tbe decision referred to has been pending for some days, and by refusing to act therein until a decision of tbis case on tbe merits, as advanced on tbe calendar, tbe defendant is given a supersedeas to which be is not entitled under any consideration when tbe facts are considered. Tbe presumptions are in favor of tbe correctness of tbe verdict and judgment in tbe district court. Tbe effect of tbis decision is to resolve all presumptions in favor of tbe appellant, and to deny to respondent tbe advantage and tbe rights to which be is entitled under bis judgment and tbe facts. Much is made, in the majority opinion, of tbe fact tbat respondent is probably insolvent, as there stated. I think tbe evidence before us comes very far from proving tbis fact. It is alleged tbat he has sold some property, but tbe sale of property does not necessarily change one’s financial status; in fact it may facilitate tbe enforcement of a judgment on execution.
When respondent brought tbis aetion against appellant, be took tbe chances of being able to enforce any judgment be might obtain. When appellant took bis appeal and refused to furnish a stay bond, be deliberately took bis chances on being able to recover from respondent in case of a reversal. These things are all incidents, and necessary inci
Considerable stress seems to be laid by the majority upon the fact that a bond purporting to be a supersedeas bond is now offered by appellant. In view of our former decision declining to permit him to give such a bond, the present decision based upon his offering it seems an anomaly. Its value in case of affirmance would likewise be quite problematical, as it may well be doubted whether respondent could recover upon it for lack of consideration. A hardship may result from any decision rendered by this court, but why should the hardship be imposed upon the party in whose favor the presumptions are, rather than upon the one who, under the law, must carry the burden of the appeal? It is tine that this court has at all times control of its calendar, but the order in which cases are placed upon such calendar is fixed by law, and the statute prescribes exceptions to the order in which cases shall be heard. The court has, in some instances, varied from that order on consent of parties, but I have never known it to do so over the objection of a party, except in the cases named in the statute. ¡Except for appellant’s long and unexplained delays, the case might long since have been finally determined. The fact is that counsel in many cases are relying upon the favor of this court to relieve them from their own negligence or carelessness, and sometimes from their own erroneous, but intentional, conduct. Courts, as well as counsel, should be governed by the statute enacted for their guidance. Parties to other pending appeals have just ground for complaint at the delay occasioned by giving precedence to an application showing no merit greater than can be shown by any party who declines to protect himself.
These views also apply to Seckerson v. Sinclair, post, 326, 140 N W. 239, and Hawkins v. Sinclair, post, 325, 140 N. W. 246, in which per curiam opinions are filed herewith.
Concurrence Opinion
I concur in the views of the Chief Justice.
