208 N.W. 947 | N.D. | 1926
This is an appeal from the order of the district court, denying defendant's motion for a new trial. Briefly, the facts necessary for a determination of the issues involved are as follows:
The defendant was found guilty of receiving deposits in an insolvent bank, and on June 2, 1924, judgment was pronounced. On the same day an appeal was taken and as no statement of the case was settled the state made a motion in this court, on May 5, 1925, to dismiss the appeal. Defendant appeared on said motion in opposition thereto, and urged that on or about February 2, 1925, the stenographic notes of the testimony, taken by the court reporter at the time of the trial, had been stolen, after about two thirds had been transcribed, and at the same time moved this court for a new trial because of the loss of these notes. This court denied the motion to dismiss the appeal as well as the motion for the new trial, the order being entered on or about June 14, 1925. On July 8, 1925, the defendant served notice of this motion *138 for a new trial in the district court, setting forth as grounds for the new trial, among other things:
"That the defendant asks for a new trial solely upon the ground that the transcript of the evidence is necessary from which to make a statement of the case and specifications of error and that by reason of the loss of the same the defendant has been precluded from perfecting his appeal. The defendant does not make this application for a new trial resting strictly upon the statutory grounds mentioned in § 10,917, Compiled Laws of North Dakota, but asserts that in addition to said grounds therein mentioned the rule has been laid down in criminal cases, in this state by inference and in others having similar statutes by direct decisions, that the loss of the stenographic notes, through no fault of the defendant or his attorneys, is held to be a ground for a new trial in addition to the grounds specified by statute." Other portions of the motion are either amplifications of this paragraph or explanatory of the same.
The district court denied this motion for a new trial, on July 14, 1925, and in the memorandum opinion accompanying the order sets forth his reason for denying the motion, which reasons are urged by the state in this court in opposition to the appeal. The trial judge came to the conclusion, 1st, that the ground urged for a new trial is not one of the grounds enumerated in § 10,917 of the Code as grounds for a new trial, and that said section is exclusive in its nature; and, 2nd, that owing to the lapse of time, more than one year having passed since judgment was pronounced, the court had no power to grant a new trial. From this order denying the new trial this appeal is taken.
Section 10,917 of the Code sets forth seven grounds, or causes for a new trial and says: "When a verdict has been rendered against the defendant, the court in which the trial was had may, upon his application, grant a new trial in the following cases only" and then sets out the seven grounds. None of these grounds can, by any stretch of the imagination, be said to include loss of the stenographic notes. The defendant recognizes this; but claims this section is not exclusive. The issue involved has not been before us in a criminal case, but has been passed upon by this court in civil procedure. In Higgins v. Rued,
Then, again, this motion for a new trial was not made in time. Under the provisions of § 10,920 the application for a new trial must be made "before the time for appeal has elapsed." The facts, heretofore stated, show the time for appeal elapsed June 2, 1925. Appeal had been taken, and is yet pending. The appellant rather ingeniously argues that by taking this appeal the trial court was divested of any *141
further authority in the case, his power was suspended, and the appeal tolled the limitation. This court has held, repeatedly, that the motion for a new trial and the appeal are independent remedies. McCann v. Gilmore,
We are of the opinion that not only is the ground set up as basis for a new trial one which we cannot consider, but, also, that the motion for the new trial was made too late, and the judgment of the lower court is therefore affirmed.
CHRISTIANSON, Ch. J., and NUESSLE, and BIRDZELL, JJ., and PUGH, Dist. J., concur.
JOHNSON and BURKE, JJ., being disqualified, did not participate; Honorable A.G. BURR, Judge of the Second Judicial District and Honorable THOMAS H. PUGH, Judge of the Sixth Judicial District, sitting in their stead.