127 N.W. 1047 | N.D. | 1910
The plaintiff and appellant in the above-entitled action applied to and' obtained from this court a writ of certiorari for the purpose of reviewing ah order of the' district court of the eighth judicial district, denying plaintiff’s application for a stay of proceed
Plaintiff’s action is, in substance, one to determine adverse claims to real property. He alleges that he is the owner in fee of certain lands situated in Ward county, and of certain lots in the city of Minót, and that while such' owner he entered into a contract with the defendant for the sale to him of the same; that defendant failed to pay the purchase price agreed upon in said contract and to comply with its terms in other important particulars; and that plaintiff has thereupon exercised his right under the terms of said contract, to cancel and declare the same forfeited and void. The relief prayed for is that the title of plaintiff may be quieted against any claims of defendant arising out of said contract. The defendant answered, denying plaintiff’s title to all of the real property in controversy, and alleged in substance that he, the defendant, was the owner in fee of the property, and that any conveyance of title made to plaintiff was held by him solely as security for the repayment of .a certain loan or advance of money made by plaintiff to defendant, and prayed that the amount of indebtedness of defendant to plaintiff for which the title of said property was held as security be determined, and that, upon payment of the same, the title of defendant be quieted as against any claim of plaintiff. The action was tried to the district court without a jury on April If, 19-09. The district court found the facts to be substantially as alleged by defendant, and ordered the entry of a decree adjudging defendant to be the owner in fee simple of the premises involved in the action, subject, however, to a claim of plaintiff as security for an indebtedness of $3,26f.60, with interest until paid at the rate of 12
After the order for judgment was made, but prior to the entry of the decree, on April 30, 1909, plaintiff made application to the district court for a stay of proceedings for a period of ninety days for the purpose of preparing a statement of the case to be used upon appeal from the decree. This application was summarily denied. Meantime, between the order for judgment and the entry of the decree by the trial court, the defendant, Hoff, conveyed his entire interest in the lots in the city of Minot to one Robinson. At about the same time and without knowledge of this conveyance, the Minneapolis, St. Paul, & Sault Sainte Marie Railway Company commenced a proceeding against Hoff for the purpose of condemning the said lots in the city of Minot to its use as station grounds. When the attorney for the railway company became advised of the fact that the title to the lots was no longer in Hoff, who was sole defendant in the condemnation proceedings, -it dismissed the action, and on or about May 22, 1909, commenced another, in which plaintiff and Robinson, defendant’s grantee, were named as defendants. Both defendants answered in the condemnation proceeding, ¿nd, before a trial of the same could be reached in regular course, the judge of the district court left the state for his summer vacation and was absent for a period of sixty days, returning to Minot and his district about September 1, 1909. During the month of August, 1909, Mr. L. W. Gammons, the sole attorney for the railway company in the condemnation proceedings, was taken ill, and from that time until his death, on December 11, 1909, was totally incapacitated for the performance of any service with reference to the trial of said condemnation proceeding. It was, however, regularly noticed for trial and placed on the trial calendar of the October, 1909, term of the district court and of a special term held in January, 1910. On January 4, 1910, plaintiff’s attorneys were appointed attorneys for the railway
It appears from the showing made by plaintiff that intending to appeal from the judgment entered, upon the order of the district court made on April 15, 1909, for the purpose of preparing a statement of the case, he ordered from the official reporter of said district a transcript of all proceedings' had upon the trial of said proceeding, and that such transcript was delivered to him on or about May 17, 1909. As explanation of and justification for his subsequent delay in completing and procuring the settlement of such statement, he avers that at this time it became apparent that the lots in the city of Minot which represented almost the entire value of the real property in controversy would be condemned to the uses of the railway company. Such being the case, their entire value necessarily depended upon the assessment of damage made by the jury called to try the condemnation proceeding. Plaintiff shows that he made considerable effort to secure estimates that would enable him to forecast with some probability the award of the jury, and had reason to believe that it would not exceed the sum of $3,500. In case such estimate reasonably approximated the finding of the jury in the condemnation proceeding, the result of an appeal of this action, though wholly favorable to plaintiff, would be in no way to his pecuniary advantage, as the sum, with interest added, of the indebtedness for which the title to the property was subject as security to his claim, as declared by the decree of the district court, would equal, if not exceed, any value that could then possibly be realised
Plaintiff perfected his appeal to this court by service of a notice and undertaking on appeal and the filing of the same with the clerk •of the district court on May 11, 1910. As hereinbefore noted, pursuant to this appeal, the full record of the action had been transmitted to this court. If an extension of time is granted that will permit plaintiff to properly propose and settle a statement of the case, he declares his willingness to prepare his appeal and have it in readiness for submission at the next succeeding term of this court, which, in view of the time the appeal was perfected, is the earliest at which it would have been presented in any case.
The single point presented for our consideration is, therefore, whether or not the district court regularly pursued its authority and exercised a sound judicial discretion in making its order denying plaintiff’s application for an extension of time for the purpose of settling
Under conditions as they now exist, some of the tests that we deem may be of value in determining whether or not the party applying after the expiration of the statutory time is entitled to an extension of time for settlement of a statement of the case are the following: (1) Do the facts shown by appellant as cause for an extension indicate that he is prosecuting the appeal in good faith upon meritorious grounds, without intent to delay its' orderly and timely despatch? (2) If the extension applied for is granted, will it operate to delay the hearing of the appeal beyond the period required in the ordinary course; and, if so, is this delay satisfactorily accounted for by appellant? (3) Is the respondent prejudiced, or will he to any degree whatever be placed at a disadvantage upon appeal by excusable delay of appellant in the performance of - the preliminary steps ? Applying these principles to the determination of the case at bar, we note, first, that there is no reason to believe that the appeal is not being prosecuted in good faith. The plaintiff makes an affidavit of merits and alleges numerous errors of the trial court. It is quite apparent that plaintiff, confronted with the situation that the only property of value involved in his appeal would be condemned to the use of the railway company, and necessarily in doubt as to the amount of the award that would then represent its value, might reasonably hesitate to incur the expense of appeal until such time as he knew the award would be greater than the sum which he would, in any event, receive out of the property. He seems to have been reasonably diligent so far as in him lay in bringing the
In our view of the conditions, the district court placed upon the •statute permitting an extension of time a construction too strict and -technical. The right of appeal may be asserted on the last day of the period limited for its exercise, as meritoriously as on the first. Plaintiff was not therefore speculating upon his rights by delaying his appeal until the end of the year in which he was authorized to take it. The settlement of a statement of the case was an essential incident ■of this appeal, and the right to have it settled by the district court was as important and valuable to him as the right of appeal. A delay in its exercise that did not interfere with the right of appeal or the ■despatch of the hearing on appeal was therefore not an unwarranted ■.speculation upon the outcome of another suit, or an attempt to reap benefits therefrom to which he was not entitled. To deny appellant ■the means of properly presenting his appeal is in effect to defeat his right of appeal, and a construction so drastic as to produce such result is usually applied only in cases where the appellant is acting in bad faith or is guilty of gross laches. It does not appear that appellant in this case can be reasonably charged with either.
The order of the District Court denying the application of plaintiff for an extension of time for the purpose of settling a statement of the •case to be used upon appeal is therefore reversed, and that court is directed to enter an order granting a reasonable time after the transmission of this record to the District Court for that purpose.