59 N.W. 1058 | N.D. | 1894
The order appealed from vacated a warrant of attachment. The order was made by the District Court of the Fifth Judicial District. The action was originally brought in the Fourth Judicial Distinct. While it was there pending a motion was made before the District Court of that District to set aside the warrant of attachment which had been issued in the action. The ground upon which this warrant was issued was that defendant had assigned and disposed of his property with intent to hinder, delay, and defraud his creditors. After a final hearing the court denied the motion, and one of the grounds of the court’s decision in denying the motion was that defendant had disposed of his property with intent to hinder, delay, and defraud his creditors. From this order no appeal was taken. Subsequently, the parties stipulated to change the place of trial to Barnes County, in the Fifth Judicial District. Upon this stipulation an order was made changing the place of trial to Barnes County, and thereafter another motion was made to set aside the same attachment. This motion was granted. Upon the hearing of it, plaintiff relied upon the previous order made by the court of the Fourth Judicial District, denying such motion, as a bar to the second motion. No counter affidavits on the merits of the motion were filed, but plaintiff relied solely upon the point that the question of vacating the attachment was res judicata. Upon the second
The respondent urges that it is always discretionary with a court to hear the same motion on the same papers and evidence, and that such a discretion the appellate tribunal will not interfere with. The rule certainly at one time did prevail that the doctrine of res judicata did not apply to decisions upon motions. That-rule has by no means been abrograted, in its full scope; but changes in procedure have wrought con-esponding changes in this doctrine, and have taken cexiain motions out of the general rule. The reasons for the doctrine were that motions did not receive such grave consideration as regular trials of issues of fact, and that there was no right of review in a higher tribunal. Simson v. Hart, 14 Johns. 75. Neither of these reasons 'apply to many motions, under our systems of procedure. We will confine ourselves, however, to motions of the character of the one which culminated in the order appealed from. Whether an attachment shall stand or fall is a question entirel}*- distinct from the merits of the action in which it was granted. That question cannot be tried in this state in connection with the trial of the case itself. It must be settled in a separate proceeding. That proceeding is a motion to discharge the attachment. It is in this way only that the court can ever decide whether an attachment shall be sustained or set aside. It would seem, on principle, that where there had been a full and fair hearing on this question, and a decision made, that decision should forever settle that question
Indeed, an examination of the cases will disclose the fact that those decisions which hold the former order no bar proceed upon the ground that the matter ought, under the circumstances presented, to be reheard, just as an issue of fact is retried when a new trial is granted. In no case has any coux-t permitted a
This brings us to the point whether one judge has unlimited discretion in granting rehearings of motions decided by another judge. It is only upon the theory of such unrestricted discretion that the order appealed from can be sustained. This order, in legal effect, set aside the previous order denying the motion to vacate the attachment, and granted a rehearing of the motion,
We are not prepared to say that Judge Lauder, himself, would not have had power to allow the motion to be reheard on the original papers, or to permit it to be reviewed upon new motion papers, the same in substance as those used on the original hearing. It is possible (but we do not decide the question) that such power resides in the District Court, with respect to motions it has decided, provided the application for a rehearing is seasonably made. The result of this doctrine would be that the judge who had decided a motion could, in his discretion, rehear it on the same facts. But this is widely different from the rehearing of the same motion on the same facts by another judge. A rehearing
It is here urged that on the first motion the defendant failed to deny the allegations that he had “disposed” of his property with fraudulent intent, and that, therefore, the new motion presented a different question, because in the moving affidavits on the new motion this averment was controverted. There is nothing in this point. It is apparent, from the fact that Judge Lauder went fully into the whole matter, that he did not decide the motion on the ground that one of the allegations of the affidavit on which the attachment was granted was not put in issue. Had this point been raised, it would have defeated the motion before him on the defendant’s own moving papers. But he did in fact entertain the motion, and compelled the plaintiff to introduce his evidence as though the whole matter was in issue, and thereafter the defendant produced evidence in rebuttal; and, so far as we know (these additional affidavits not being before us;) such affidavits fully went into all the matters touching any disposition of his property,
The order of the District Court is reversed.