151 N.W. 779 | N.D. | 1915
Plaintiff recovered a judgment for $235.50 in district court after trial by jury, and notice of the entry thereof was served upon attorneys for defendant February 9, 1912. A statement of the case was settled September 26, 1912. Thereafter, defendant claims he served upon the attorneys for plaintiff notice of intention to move for a new trial and notice of motion for a new trial, which latter he alleges was dated September 27, 1912, and was returnable at Carrington on the 14th of October, 1912. Defendant’s attorneys, however, have filed an affidavit denying the receipt of such notice of motion. The trial court in a supplemental statement states that such a motion “was brought on ... on the 14th of October, 1912, and that on account of the nonappearance of counsel for plaintiff I ordered the said motion to be continued until such time as counsel could be heard.”
Without deciding who is right relative to this dispute, we pass on to say that no hearing upon the merits of this motion was had, and on the 22d of March, 1913, defendant served a notice of motion for a new trial, returnable at Jamestown on the 7th of April, 1913. About the existence of this motion there is no dispute. When such hearing was reached, plaintiff appeared and entered a special appearance, and objected to the jurisdiction of the court in the premises for the reason that more than one year had passed since the entry of judgment and service of the notice of entry of judgment therein, whereby the defendant had abandoned his right to a new trial, and had abandoned his right to an appeal. Notwithstanding this objection to its jurisdiction, the trial court heard and allowed said motion for a new trial, and this appeal follows. Plaintiff stoutly insists that the defendant’s alleged
(1) This brings us to a consideration of the position of the appellant, who states in his brief that the trial court had no jurisdiction to. order a new trial, because more than a year had elapsed after notice of entry of judgment had been served upon the defendant. He calls our attention to § 7966, Comp. Laws 1913, which reads: “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the. judgment is sooner satisfied;” and to § 7204, Rev. Codes 1905 (which section, however, has been since repealed and has been