Gohl v. Bechtold

Christianson, J.

This is an appeal from an order of the district, court of ward county granting defendants’ motion for a new trial. The action was tried to a jury, which returned a verdict in plaintiff’s-favor. On December 11, 1915, judgment was entered pursuant to the verdict, and notice of entry of the judgment was duly served upon the defendants’ attorneys on that same day. From time to time orders were made extending the time within which to settle the statement of case and move for a new trial. The last order of extension which was made on April 18, 1916, extended the time in which to settle the statement and move for a new trial to the 18th day of May, 1916. No further or additional extension of time was either applied for or granted. On June 9, 1916, the defendants served a notice of motion for a new trial, noticed to be heard on July 1, 1916. When such motion came on to be heard, plaintiff appeared specially and filed written objections-to the hearing thereof on the ground that more than six months had elapsed since the notice of entry of judgment had been served, and that as no appeal from the judgment had been taken the action was no longer pending. The trial court overruled the objections and entered an order granting a new trial, unless the plaintiff agreed to a certain reduction of the verdict. Blaintiff appeals from this order.

The first reason assigned for a reversal is that the motion for a new trial was noticed to be heard, and heard over plaintiffs objection, more than six months after notice of entry judgment had been served. Questions somewhat analogous to the one now under consideration have been considered by this court in several recent cases. See Grove v. Morris, 31 N. D. 8, 151 N. W. 779; Higgins v. Rued, 30 N. D. 551, 153 N. W. 389; Garbush v. Firey, 33 N. D. 151, 156 N. W. 537; Skaar v. Eppeland, 35 N. D. 116, 159 N. W. 707.

In the first three cases cited, — this court held that when a notice of motion for a new trial is served more than six months after the date of notice of entry of judgment, — i. after the time for appeal from the judgment has passed, — the district court is without authority h> entertain such motion over the objection of the adverse party. In the last case cited (Skaar v. Eppeland, supra), this court held that where a motion for a new trial is duly noticed to be heard at a date prior to-the expiration of time for appeal from the judgment, but continued by consent of the parties, and finally submitted and determined after the time for appeal from the judgment has expired, the final character of the judgment is suspended by the pending proceedings, and the court has jurisdiction to determine the motion for a new trial even though the time for appeal from the judgment has expired.

Defendants’ counsel contends that the service of notice of motion within the six-month period suspended the final character of the judgment, and brings the case within the rule laid down in Skaar v. Eppeland, supra. We are wholly satisfied with the rule announced in Skaar v. Eppeland, but it has no application in this case, as an examination of that decision will show. The following language used in Skaar v. Eppeland is peculiarly significant: “Where a motion for a new trial is duly noticed to be heard within the six-month period, and final hearing thereon postponed by consent of the parties, or the delay of the court in deciding the motion, the final character of the judgment is-suspended by the proceedings so pending.”

In the case at bar the motion for a new trial was not noticed to be heard within the six-month period. The mere service of notice of motion within that time does not suspend the final character of the judgment.'

Defendants’ counsel also contend that under the provisions of § 7666, Compiled Laws of 1913 (wliicli is a literal re-enactment of § 7068, Rev. Codes 1905), the trial court is vested with power to extend the time in which to move for a new trial for such length of time as in its discretion may be deemed necessary, or to fix another time in which to move for a new trial even after the six-month period has expired. If defendants’ counsel are correct in the interpretation to be given to this section of our statute, a' judgment would never become final, and a trial judge might permit a motion for a new trial to be made at any time. So far as we know, such unlimited power has never been granted to any court. Under the common law a court retained control over its judgments during the term at which they were rendered only. See Skaar v. Eppeland, supra. We do not believe that the legislature intended to grant such unlimited power to the trial courts. As we said in Garbush v. Firey, 33 N. D. 154, 156 N. W. 537: “There must be some end to litigation. Public policy demands that there be some point of time when a valid judgment, regularly entered, becomes final and unassailable. The legislature recognized this fact, and its intent as declared by § 7966, Compiled Laws, is that a judgment shall become final and conclusive when the time for appeal has expired, and that no proceedings shall thereafter be instituted, over the objections of the •adverse party, for a reversal of such judgment

The statutory provisions relative to motions for a new trial must be given a reasonable interpretation, and construed in harmony with § 7966, Compiled Laws of 1913, which provides: “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is soon satisfied.”

In our opinion the trial court had no authority to entertain the motion for a new trial in this case.

The order appealed from is reversed.