Harrington v. Eggen

Pur Curiam.

This case is before ns upon a certified report of one of the judges of the first judicial district in this state, and involves the correctness of the ruling of such judge in refusing to settle a statement of case.

It appears that, upon the hearing of the application to settle the statement, objection was made to the settlement on the ground that the time allowed by law for such settlement had expired; and that no valid cause for extension had been shown. And it was contended: (1) That the court was without jurisdiction to settle the statement; and (2) that in any event no good cause had been shown for either extending the time in which settlement might be made or for settling such statement of case after the. time prescribed by law had expired. In a memorandum opinion the trial judge stated that even assuming that he had jurisdiction that, nevertheless, no good cause had been shown so as to justify the settlement of the statement under (he. provisions of law relating thereto. Later an affidavit was submitted by counsel for the moving party and the matter was reconsidered and after such reconsideration the trial judge made an order refusing to set tie the statement on both of the grounds urged in opposition to such settlement. Thereupon, at request of counsel for the party seeking to have the statement of case settled the trial judge, certified the two stated questions to this court.. The certificate refers to the, affidavit submitted in support of tbe 'application to settle the statement of case. Manifestly, the order of the trial court could in no event be overruled unless it appears that both grounds assorted by tbe trial court are erroneous. It appears that in the court below the party resisting the application to have the statement of case settled urged that the questions sought to be certified were not properly certifiable to this court. The same contention is urged in this court and in our opinion is well founded. In Malherek v. Fargo, 48 N. D. 1109, 189 N. W. 245, this court said:

“The purpose and effect of the statute, relating to certification of questions of law to this court has been considered by this court in former cases. Stutsman County v. Dakota Trust Co. 45 N. D. 451, 178 N. W. 725; Guilford School Dist. v. Dakota Trust Co. 40 N. D. 307, 178 N. W. 727. See, also, rule 17, District Court .Rules of Practice. The statute was enacted by the Legislature in 1919. Soe chapter 2, Laws 1919. The title of the act reads thus: ‘An act to provide for the certification of questions of law to the Supreme Court in civil and criminal cases where the determination of such questions may determine the issues in a cause at issue.’ Section 1 of the act reads as follows: ‘Where any cause is at issue, civil or criminal, in any district court or county court with increased jurisdiction, in this state and the issue of the same will depend principally or wholly on the construction of the law applicable thereto and such construction or interpretation is in doubt and vital, or of great moment in the cause, the judgment of any such court may, on the application of the attorney or attorneys for plaintiff or defendant in a civil case, and upon the application of the attorney for the plaintiff and defendant in a criminal cause, halt all proceedings until such question or questions shall have been certified to the Supreme Court and it or they have determined.’

“By its plain language the statute is applicable only where it is apparent that the determination of any pending cause ‘will depend principally or wholly upon the construction of the law applicable thereto, and such construction or interpretation is in doubt and vital or of great moment in the cause.’

“When that situation exists, the trial court ‘may, on the application of the attorney or attorneys, for plaintiff' or defendant in a civil case . . . halt all proceedings until such question or questions shall have been certified to the Supreme Court and it or they have been determined.’

“This action has been dismissed. The exigency which the statute presupposes as a condition precedent to its invocation does not exist. And, as appears from the certificate of the trial judge, the question certified here is really one as to the legal sufficiency of the evidence upon the proposition whether a police officer of the city had actual knowledge of the dangerous condition of the sidewalk.

“In our opinion the record before us does not present a case within (lie statute. See Stutsman County v. Dakota Trust Co. supra; State v. Cornhauser, 74 Wis. 42, 41 N. W. 959 ; State v. Loomis, 27 Minn. 521, 8 N. W. 758; State v. Billings, 96 Minn. 533, 104 N. W. 1150.”

This language is equally applicable here and is decisive of the question presented.

We deem it proper to say, however, that an examination of the record leads us to the conclusion that it can in no event be said that the trial judge abused his discretion in refusing to settle the statement of case.

Proceeding dismissed.

Bronson, Ch. J., and Christianson, Birdzell, Nuessle, and Johnson, JJ., concur.