80 N.W. 760 | N.D. | 1899
The relief sought by this action is the surrender and cancellation of two promissory notes executed by the plaintiff and delivered by him to the defendant,' — one of said notes being for • $500, and the other for $400; also, the cancellation of a certain mortgage covering a house and lot owned by plaintiff, situated at Grandin, N. D., and occupied by plaintiff and his wife as a homestead, which said mortgage was executed by plaintiff and his wife, and delivered 'to the defendant, as security for the payment of said notes. The complaint alleges, in substance, that said notes and mortgage were given wholly without consideration, and were obtained by duress, undue influence, menace, and fraud practiced upon the plaintiff by the defendant. The answer denies all of these charges, and defendant alleges that the notes and mortgage were voluntarily given by the plaintiff to secure an indebtedness which was in excess of the amount of said notes, and that said indebtedness arose, on account of money and property belonging to the defendant which the plaintiff had unlawfully appropriated to his own use. The plaintiff had judgment below, and the defendant, in the statement of the case, has demanded a retrial of the entire case in this Court, under the provisions of section 5630, Rev. Codes, as amended by Chapter 5, Laws 1897.
When the case was called for trial in the District Court, that court announced' that it would call a jury, and submit certain questions to them for their verdict, — which verdict, however, the Court stated, would be regarded simply as advisory to the Court. The defendant, by his counsel, objected to the calling of any jury, and to the submission of any evidence to a jury, on the ground that the action was to be tried under section 5630 of the Revised Codes, and that such an action could not lawfully be submitted to a jury. This objection was overruled, and an exception was taken to such ruling. The Court then submitted certain questions in writing to the jury for ah advisory verdict, which are as follows: “Was the plaintiff induced by the defendant to execute the notes and mortgage in question (1) by duress; (2) by menace; (3) by fraud; (4) by undue influence?” Defendant here interposed special objections to the submission of said questions to the jury, for the following reasons, viz: That the first called for a conclusion of law, and not a statement of fact; the second is not a proper question to submit to a jury, and is immaterial; and to the fourth, that it is not a proper question to submit to a jury, and calls for a conclusion of law. All of the said objections were overruled by the trial court, and defendant excepted to the ruling. Upon the issues so submitted the
The. record discloses that all the evidence in the case which was offered in the trial court has been incorporated in the statement of the case, and transmitted to this Court; but the further fact appears that, while the evidence was being elicited before the jury, certain evidence was offered, which upon objection thereto being made by counsel, was excluded from the consideration of the jury by the trial court. As the trial progressed before the jury such rulings were of frequent occurrence. But it is also true that it appears that after the jury was discharged the witnesses were recalled, and were then permitted to give the evidence before the Court which had been excluded from the jury. Exceptions were saved to this mode of taking the evidence, and the rulings are assigned as error in this Court; and the action of the trial court in submitting the several issues to the jury for a verdict, as already stated, is also assigned as error. These assignments of error devolve upon this Court the duty of passing upon a preliminary question of practice never before raised in this Court. The question is this: Whether section 5630 of the Revised Codes, as amended by Chapter 5 of the Laws of 1897, governs the procedure in the District Court and in this Court in an equity case, wherein the trial court calls a jury to its aid for advisory purposes. It is our opinion that said statutes do not govern in such cases. That the District Court may, at its discretion, call in a jury for an advisory verdict in -an equity case, is entirely clear. This is the old and well-established practice in courts of equity, and this practice is clearly recognized in the Code of Civil Procedure. Rev. Codes, § 5420. But, when this course is adopted in the trial of equity cases, the practice which regulates such trials — the same not being governed by statutory provisions. — must be sought for in elementary treatises, and in the decisions of the courts. In the
Applying what has been said to the facts as they appear of record in this case, we shall be compelled, though with great reluctance, to hold that the procedure in the trial court in this action was wholly irregular, and was conducted upon a misconception of the law of procedure governing such a case: We are confronted by the fact that this is an equity case, in which a jury was called to determine issues of fact. In such cases, as has been shown, the ordinary rules of evidence are applicable, and this Court does not sit to try them de novo. But it also appears that the case was tried below, and has been appealed to this Court, in conformity with the provisions of section 5630, supra, which statute does not apply to cases such as this. At the trial all the evidence offered was received, and the court below bases its findings upon a consideration of all the evidence offered in the case. In settling the statement of the case, also the 'court below was governed by said statute. Court and counsel alike manifestly assumed at the trial, in all that was done, and in taking the appeal, that the case, as to its procedure, came within the provisions of the statute last cited. There having been a mistrial below, we deem it to be our duty to order a retrial of the case in the District Court, and a reversal of the judgment, and this Court will so direct.