Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-09-23
SUPREME COURT.
FULL TEXT OF DECISION FILED.
George Vozner, Respondent, Us. August Stage
man and Caroline Stogenaan, appellants.
OPINION.

4a.- i
In this case the pls.ntiff's counsel moves for
a reargument, upon the ground that in the
opinion heretofore fled herein this court fell
into an error of fact as respected q certain
blank note. Upon further examination of the
complaint we have come to the conclusion that
the counsel is right and that the court erred in
holding that allegations of the complaint ire
lating to the blank note we're essential parts of
the plaintiffs cause of action" and in over
looking the fact that irrespective of these ale
cations the complaint, as will hereafter aP-
pear, states good cause Of action. The rear
gument is therefore allowed, and this requires
us to consider several preliminary points ar
gued by defendants to which in the disposition
before made Of the case is unnecessary to re-
vert.
This action having been tried by the court
below without a jury. was dismissed on the 10Th
day of September, 1874. On Nov. 23d, 1874,
reargument was applied for by the plaintiff and
denied.
Subsequently the plaintiff made motion for
Judgment notwithstanding the findings of the
court, and failing in that, for leave to make
and serve case to be made basis for motion
for new trial This motion was heard May
25th, 1875, and on Nov. 18th, 1875, the court
made an order denying the motion for iudg-
ment and granting leave to plaintiff to make
and serve case in sixty days. The sixty days
expired Jan. 18th, 1876. On that day plain
tiffs attorney deposited the proposed case in
the postofice at the place where he resided,
properly addressed. to defendants attorney
with the postage paid. The document did not
leave the postoifice where it was
mailed until January 18th, on which
day it reached the defendants attorney and
was by him returned with notice that it was re-
turned because it was not served within sixty
days from Nov. 18th. The proposed case hav-
ing been brought before the district judge for
settlement and allowance, the defendants
counsel objected upon the ground that it was
| not served within the time allowed by the
| court.
| The objection was overruled and the proposed
case with an amendment showing an exception
taken by defendant was allowed as the settled
case. The order Of allowance was signed by
was not signed by him otherwise than by sign
ing the said order. The plaintiffs thereupon
| made motion for new trial in the action
upon the ground first, "that the verdict and
decision therein was not justified by the eyi
errors in law occurring at the trial and ex-
cepted to by plaintiff" In hin notice Of
motion for new trial the plaintiffs
attorney gave notice that upon the
hearing he will read and refer to
the settled case, the pleadings, and all the rec
ords, papers, and proceedings in the case. it
| by the defendant to the use OF the settled case
(such as it was) upon the hearing of the motion.
| The court granted new trial, reciting IN the
order therefor, that it was granted latter an
examination of the settled case, and all the pa
pers and proceedings in the case, and after
hearing the respective attorneys of the plain
| tiffs and defendants.
| The defendant contends that the order deny
| ing a new trial was wrong, because the denial
| OF the motion for real gument was final
disposition of the case by the court below,
that it was equivalent to denial OF a motion
| for new Crial made on the minutes of the
court. Without reference to other answers to
this position, it is sufficient that though it does
not appear upon what ground the motion for
reargument was deniei, it might very prop
erly have been denied upon the
ground that notion for re-
district courts, and ought not to be tolerated,
since there are other ways provided by law and
sanctioned by commol practice for the re-
examination and revisal of the actions of such
courts.
1t is further argued that the order grantinga
new trial was wrong because ''the motion for
Judgment notwithstanding the decision having
been denied the matter was ties ddju0icata." As
to this 1T is enough to say that the motion was
in the alienation I. 2, for judgment or for leave
to make case and for augb thai appears the
court Gas would have been eatirely proper) may
|
for the reason that it granted the latter.
1t is further objected that the motion for
leave to make a case was nade too late. It was
not made within the time prescribed in section
237 CHI. &c. General Stat. put the effect of the
leave given to mike it alter such prescribed
was to grant further time to
make it, and this is authorized
by sec. 1O5 CHI. 66, gen st. It is also said that
{ the proposed case wasnot served within sixty
days allowed by the order of leave If it was
not the failure to make timely service, was
3 cured by the actual settlement and allowance
of the case by the coirt. This was equivalent
to an allowance of service after trial or to an
enlargement of tho lime of service under sec
r tion los ch. &c, gen. st.
It is further urged that no "case'' was al
lowed and signed blythe trial Judge as required
by section 237 oh. &c. gen. st. The return en-
braces what purportsto be copy of pro-
posed case containing all the testimony received
on the trial. 1t alsoembraces copy of an or
der signed by the jutge of the court below In
copies of the compliant, answer and order of
court dismissing saS action be attached to
s said proposed case aid made part thereof
r and that said proposal case SO amended be al
lowed and stand as tB settled case in said &C
tion.''
q The return further shows that upon some
Q document treated az a settled case motion
for new trial was hard and granted by the
court below. Upon these facts we are Of
opinion that as nothing appears to the con
t trary it is to be presaned in favor of the regu
, lariLy of the proceedings in the court below
. that the order signed by the judge is attached
9 to the proposed case 80 that the two are parts
II of one and the same document. If this is so
: the allowance expressed in the order and the
\ judges signature theseto are sufficient allow
anee and signing Of the case Mccormick ~, vs.
rick, M, s. APP. T. 1872, are authorities that ,
3 dismissal of an action for insufhciency Of evi
!. dence is a decision Of the same within the
. meaning of the statute which allows motion
for new trial to be made upon the grount
r that the decision is not justified by the evi
t dence, and is contrary to law.
To the point that the order of dis
missal could not be re-examinee
because it had been excepted to it is an answe
that this case was one in which no exception
!, was requisite because there was no opportunit.
q to take one. For an exception is an objection
taken at the trial (Gen st. oh &c, sec. 233) an,
n granted at the trial but after it was concludes
: and the court had taken the case under advise
: ment As to the only remaining objection
. which We care to notice. Searles VS.. Is MINI
- BIG, in effect decides that upon the dismissal
an action motion for a new trial may proper
ly be made upon lease settled
o We come now to the merits of this appeal
n So far as important to our present purpose tn
substance of the complaint is this: It a.lege
u that the defendants are and during all the tim
]. mentioned in the complaint were husband an
wife; that on January 10, 1870. the plaintiff re
" covered Judgment against defendan
70 August for $398.78; that on the 18th day o
y July, 1870, the Judgment bein
y it having been paid plaintiff, and said Angus
r entered into an agreement whereby the latter
in consideration that the plaintiff would salts
fy the Judgment, agreed to pay him $4Oo j
70 two years and five months from said July II
l. with IL per cent. annual interest, ais
agreed to execute and deliver to said plainti
his pronlissory note of that date for $40O, pay
q able according to the terms of the agreement