133 N.W. 912 | N.D. | 1911
The plaintiff, having sustained a loss of stock, sued the defendant railway company. The summons and complaint were served upon the acting station agent at Langdon, North Dakota, September 26, 1907. The company were not notified of the receipt of the papers, .and judgment was entered against them by default, January 3, 1908. They received notice of the entry thereof upon the 21st day of January, 1909, and upon the 15th of February, 1909, applied to the court wherein the judgment was entered, being the district court of Cavalier county, to be relieved from their default. Their affidavits show rather conclusively that the company itself had no notice of the service of the papers, but it was almost as well established that the acting agent received them and neglected to forward same. This application was denied by an order dated February 19, 1909. Upon the 19th day of April, 1909, the defendant appealed from said order to the supreme court, and stayed all proceedings by a supersedeas bond. This appeal was never passed upon by this court, and was abandoned, as we shall presently see. March 23, 1909, the defendant company made an application to the court to set aside the order of February 19, 1909, upon. affidavits used upon the original hearing, supplemented by further affidavits along the same line. This second' application was made before the appeal from the first order, but the trial court had made nc
Two questions present themselves: First, Did the appeal from the •order of February 19, 1909, devest the trial court of jurisdiction to vacate such order ? and, second, if so, did the filing with the district' •court of a notice that the appeal had been abandoned restore such jurisdiction ?
Upon the first question, the authorities are unanimous. This court, in the case of Moore v. Booker, 4 N. D. 543, 62 N. W. 607, says: “The simple matter of fact is that when an appeal is taken all power of the court below over the parties and the subject-matter of the controversy is lost until the cause, or some part thereof, is remanded.” See also 4 Enc. L. & P. 246; 2 Enc. Pl. & Pr. 327; 2 Cyc. 977, and cases therein cited. Indeed, the appellant does not contest the above authorities, but rests his. argument upon an analogous situation arising when an application is made to the trial court for a new trial upon newly discovered evidence, which may be heard hy the trial court, even pending an appeal upon the merits of the case; this being the doctrine of the
The second question remains. Was the jurisdiction of the district court restored when defendant files its notice of the abandonment of its appeal ? We think not. The rule seems to be correctly stated in 3 Cyc. p. 182: “After the jurisdiction of the appellate court has attached, the trial court is without power to dismiss an appeal.” And again, at page 184, same book: “An appeal cannot be dismissed but upon leave of court, and sometimes the consent of the appellee is also necessary.” For a list of late cases holding upon this question, see 1911 Ann. Cyc. p. 355, and especially see Merrill v. Dearing, 24 Minn. 179, where it is said: “He should make application to the court for leave to dismiss. A mere notice that he dismisses is a nullity.” See also Re Seattle, 40 Wash. 450, 82 Pac. 740; Burnett v. Harkness, 4 How. Pr. 158; and Wienman v. Dilger, 14 Jones & S. 101. It follows that the trial court has, even since the first appeal, been without.jurisdiction to reconsider
It may be stated in passing that if defendant considered tbe last application as a new application so as to escape tbe above reasoning, tbe plaintiff bas tben tbe perfect defense tbat sucb application was made more than a year after defendant bad notice of tbe entry of judgment.
Affirmed.