198 N.W. 121 | N.D. | 1924
Statement.
This appeal involves a practice question. The action is for the conversion of grain. ' On February 11th, 1922, judgment was entered in plaintiff’s favor pursuant to a verdict. In May, 1922, defendant made a motion for judgment non obstante or, in tbe
Contentions.
Plaintiff contends that the trial court did not possess any jurisdietion to hear the motion for the new trial or to act contrary to the man-
Defendant maintains that the statute, § 7666, Comp. Laws 1913, gave to the trial court express authority to extend the time within which a motion for a new trial upon the ground of newly discovered evidence might be made, and to hear the motion therefor; that the decision of this court was not a bar to the exercise of this jurisdiction by the trial court.
Decision.
The 1913 Practice Act, chap. 131, Laws 1913, sought to aid the courts in speeding up the administration of justice and in eliminating the necessity of certain objections, exceptions, and motions to secure review by appeal; the time of appeal was shortened from one year to six months; the necessity of serving a notice of an intention to move for a new trial within a certain limited time was abrogated; the necessity of taking exceptions was practically abolished; the former statute, § 7065, Eev. Codes, 1905, which permitted a motion for a new trial upon the ground of newly discovered evidence to be made at any time before the close of the term next. succeeding that at which the trial was had was supplanted by a provision that such motion might be made at any time within six months from the rendition of the verdict, or decision. Laws 1913, § 6, chap. 131. It was supplemented by another provision, (readopting in exact phraseology § 5477, Eev. Codes, 1895) to the effect that the court or judge, upon good cause shown, might extend the time within which certain acts (including the motion involved) might be done, or after the time limited therefor has expired, might fix another time within which any of such acts miglif he done. Laws 1913, § 7, chap. 131. This Practice Act repealed all acts and parts of acts inconsistent therewith. Its evident purpose, as this court has heretofore indicated, was to hasten the termination of litigation and thé final character of judgments and to shorten the time within which appeals might be. had. Gohl v. Bechtold, 37 N. D. 141, 144,
Upon such, and other statutory enactments the jurisdiction of the trial court was dependent in order to vacate its own judgment through a motion for a new trial. McKenzie v. Bismarck Water Co. 6 N. D. 361, 374, 71 N. W. 608.
In the absence of a right of appeal, the jurisdiction of the trial court to entertain or grant a motion for a new trial, pursuant to the statutory enactment, is prescribed by the limitation that the judgment in the meantime must not become final in its character. Higgins v. Rued, 30 N. D. 551, 153 N. W. 389; Grove v. Morris, 31 N. D. 8, 151 N. W. 779; Garbush v. Firey, 33 N. D. 154, 156 N. W. 537; Skaar v. Eppeland, 35 N. D. 116, 159 N. W. 707; Gold v. Bechtold, 37 N. D. 141, 146, 163 N. W. 725; Bovey-Shute Lumber Co. v. Donahue, 43 N. D. 247, 175 N. W. 205. If the six months period has elapsed within which time an appeal may he had, without any appeal, the judgment has become final and the action is deemed no longer pending. Comp. Laws 1913, § 1966. Then, for purposes of a motion for a new trial, the jurisdiction of the trial court has ceased and no proceedings thereafter may he instituted for a reversal of such judgment. Skaar v. Eppeland, 35 N. D. 116, 123, 159 N. W. 707. However, if a motion for a new trial has been submitted to a trial court before the judgment has become final it may he determined by the trial court after the period of time within which ordinarily it would have become final. Ibid.; McCann v. Gilmore, 42 N. D. 119, 123, 172 N. W. 236. But mere service of notice of a motion for a new trial is insufficient to retain the jurisdiction of the trial court. Gohl v. Bechtold, 37 N. D. 141, 146, 163 N. W. 725; Bovey-Shute Lumber Co. v. Donahue, supra.
Thus, in the case at bar, the right of the party to present, and the jurisdiction of the trial court to hear, a motion for a new trial has been lost unless the appeal taken from tbe judgment operated to retain
It is clear that upon an appeal from, the judgment that an action is deemed to be pending from the time of its commencement until its final determination upon appeal. Comp. Laws 1913, § 7966.
The general and recognized rule in this state has been that upon an appeal from the judgment the jurisdiction of the appellate court attaches and that of the trial court ceases, over the parties and the subject matter of the appeal until the cause is remanded by the appellate court for further action. Moore v. Booker, 4 N. D. 543, 556, 62 N. W. 607; Mosher v. Mosher, 16 N. D. 269, 275, 12 L.R.A.(N,S.) 820, 125 Am. St. Rep. 654, 113 N. W. 99; Getchell v. Great Northern R. Co. 22 N. D. 325, 327, 133 N. W. 912.
Upon an appeal from the judgment the statutory authority is conferred upon this court to reverse, affirm, or modify the judgment and, if necessary or proper, to order a new trial. Comp. Laws 1913, § 7844. Upon such appeal from a judgment the entire judgment roll is required to be, as it was in this case, certified and transferred to this ■court including original papers filed in the trial court. This judgment roll includes, and did include in this case, a motion for a new trial and the order of the court thereon. See §§ 7688-7690, Comp. Laws 1913. After the transfer of such record through the judgment roll the jurisdiction of this court became complete.
Thereupon, this court became invested with a jurisdiction over the subject matter of the appeal which it retained until it disposed of the appeal and remanded the cause through a remittitur to the trial court. Patterson Land Co. v. Lynn, 36 N. D. 341, 162 N. W. 702. Thereupon, this court possessed the jurisdiction and the power to affirm, reverse, or modify the judgment, or to grant a new trial in the action. Comp. Laws 19J3, § 7844.
In the instant case, this court might have granted a new trial gen-erally, in which event the trial court would have possessed no authority to limit the scope of such new trial as granted. In the instant case, the defendant, who subsequently has secured from the trial court an order granting a new trial generally, sought through its remedy by appeal, to secure in this court, a reversal of the judgment or a new trial in the action. This court, pursuant to defendant’s application