Irvine v. Lawrence Meyers & Co., 6 Minn. 558

Irvine v. Lawrence Meyers & Co.

6 Minn. 558 | Minn. | 1861

By the Court —

FlaNdbau, J.

— The time to serve the proposed case had expired, and the application for leave to serve a case after the prescribed time, was addressed to the favor of the Court, and was not based upon any right of the Defendant. The granting or refusal of such applications are always within the discretion of the Court, and such decisions are not appealable. 1 Selden, 547. The Court in that case held a motion for leave to file exceptions to the report of a referee after the statute time had expired, was addressed to the discretion of the Court, and an order denying it was not appeal-able. See also, 3 Comst., 334. The motion did not differ from the ordinary application to file an answer, reply or any other paper, after the expiration of the time allowed by law. The Court may or may not grant the favor in his discretion, and nothing but an abuse of his discretion will justify the interference of this Court.

The Counsel for the Appellant seems to think that we have held in the case of Morrison vs. March, 4 Minn., 422, that the statute requiring a bill of exceptions or case to be made within five days after the trial does not apply to a trial before the *561Court or a referee. Such however is not the case. The question there, was, whether the Appellant must make a case in all appeals whether tried by jury, court or referee, and we held that it was necessary only in cases tried by jury. That in cases tried by the Court or a referee, we would review the question whether the facts found sustained the conclusions óf law upon the report of the referee or finding of the court, without a case made embodying them. At pages 426-27, we say, “The counsel says that our statute makes it imperative that a case shall be made whenever an appeal is taken, and cites Comp. Skits.,p. 56o, seo. 63. But it will be seen on a careful examination of this section that it only applies to cases tried by a-jury, and not to a trial by the Court where the decision may be filed out of term as well as in term.”

It is true that this section is so limited in its operation because of the peculiar language used. It says :

“ The application for a cause mentioned in the fourth and fifth subdivisions of section fifty-nine, can only be made when notice thereof, oral or written, was given in open court, immediately after the verdict or other decision rendered,” &c.

Of course, a trial before a referee or the Court does not suppose a decision in term, and prevents the possibility of giving notice in open Court as required by that section, immediately after the decision rendered, and must refer only to trials by jury. But the 60th section makes the proper provision for the case of a trial by the Court or a referee, and does provide for the preparation of a case within five days after the trial, and the trial in such cases must be continued or considered pending until the filing of the decision.

If the order was appealable, we have very little doubt about the correctness of the practice below. When a motion is once denied for any cause, technical or on the merits, the defeated party must obtain leave from the Court before he can renew it upon the same state of facts. The usual mode is to insert a clause in the order denying the first motion, that it shall be without prejudice to the motion being renewed. There is no pretence that the Court abused the discretionary powers reposed in him.

Appeal dismissed,