51 Minn. 337 | Minn. | 1892
The defendant’s (respondent’s) motion to strike the “settled case” from the record herein must be granted. November 10, 1890, a verdict was rendered in his favor for about $300. Plaintiff’s counsel then moved on the minutes of the court to set aside the verdict, and for a new trial. February 6, 1891, this motion was ■denied, provided defendant should within twenty days file written consent to a reduction of the verdict in a stated amount. This written consent was filed four days later, and no appeal was taken from the order. April 16th judgment was entered upon the verdict as reduced, and May 7th the appeal now under consideration was taken from said judgment. August 10th, four months after the entry of judgment, six months after the order was made denying a new trial, and nine months after the rendition of the verdict,
The trial court, evidently with great hesitation, thereupon settled and allowed the case as proposed by plaintiff’s attorneys, and it is this act which has been brought in question by the motion to strike the case from the record here.
A motion for a new trial upon the minutes of the court is authorized by 1878 G. S. ch. 66, § 25é, and the court below seemed to be of the opinion, because the statute provides that “when such motion is heard and decided upon the minutes of the court and an appeal is taken from the decision, a case or exceptions must be settled in the usual form,” that the same were properly to be settled at the time of the appeal, and not in accordance with the terms of section 255, wherein is found — and nowhere else do we find — the manner of procedure on this subject definitely prescribed and fixed. If the word “when,” as found at the beginning of the above excerpt, relates to the time of the settlement of a case or bill of exceptions, as was held below, it would leave us in a quandary as to whether it had reference to the time the decision was made or to a subsequent time when the appeal was taken. At which time must the ease or bill be proposed and settled? Evidently the word “when” relates to the fact of the motion and its determination, and has the meaning the word “.provided” or the words “in case” would have had, if used in the same connection. We believe this to be the view of the profession on the question, as indicated by their course of practice in like cases, and we can see no reason for distinguishing between motions made as this was, and those made in the regular way, when a settlement of a case or bill of exceptions is desired. A stay of proceedings, with an extension of time within which to propose and settle a ease, can be obtained in one case as well as the other. If the practice contended for by plaintiff could be tolerated, the provisions of section
If, in effect, a stay of proceedings for the purpose of making a case could thus be secured, the party upon whom a proposed case was served, after the expiration of the twenty days prescribed by statute, would be placed at the mercy of the court and his opponent.
If he retained the proposed case or bill, it would be insisted that he had waived his right to object to a determination of a motion to settle and allow. If he submitted amendments, this position could be maintained with greater certainty of success; and if he returned the papers, as was done in this instance, he would be deprived of an opportunity to submit amendments, and, possibly, of taking any part in the settlement. No litigant can be placed in this predicament. Again, the district judge, when acting upon plaintiff’s motion to settle and allow the proposed case, held that said plaintiff was entitled to the same as a matter of right.
With the settled case stricken from the record, none of appellant’s assignments of error can be considered.
Judgment affirmed.
(Opinion published 53 N. W. Rep. 643.)
