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19 ND 308

Tuttle v. Pollock

North Dakota Supreme Court

Decided November 19, 1909

North Dakota Supreme Court · decided 1909-11-19

<p>Appeal and Error — Mandamus to Compel Settlement of Statement of Case.</p> <p>1. Mandamus is a proper remedy to compel a trial judge to settle a statement of the case when presented to him in accordance with the facts and in time, and he refuses to settle it.</p> <p>Same — Settlement by Supreme Court.</p> <p>2. The Supreme Court will settle a statement of the case when the trial judge refuses to settle it in accordance with the facts, under section 7060, Rev. Codes 1905.</p> <p>Appeal and Error — Extension of Time to Settle Statement of Case — Discretion.</p> <p>3. Trial courts have a wide discretion in granting or refusing extensions of time during which a statement of the case may be presented for settlement, and their action will not be disturbed except . in cases of a plain abuse of such discretion.</p> <p>Appeal and Error — 'Statement of Case — Extension of Time — Discretion to Be Exercised upon Facts Connected with the Appeal.</p> <p>4. The discretion to be exercised in such cases is in reference to the diligence or delay with which parties have proceeded and other facts pertaining to the conduct of. the parties in connection with . the appeal.</p> <p>Same.</p> <p>5. Such discretion is not to be controlled or made to depend on the fact that appellant’s conduct has not been conformable to justice or equity or personal duty in respect to matters not connected with the appeal.</p> <p>Appeal and Error — Statement of Case — Discretion of Court — Discretion Based on Facts Connected with the Appeal.</p> <p>6. On an appeal by a husband from a. decree of divorce against him whereby his property was assigned to the wife in lieu of permanent alimony, and he was also decreed to pay fixed' sums as costs and attorney’s fees on the trial in the district court, it is an abuse of discretion to refuse to settle a statement of .the case until the husband makes provision for the support of his wife and children, pending the appeal, in cases where the trial judge has lost jurisdiction to make an order for support money pending the appeal for the reason that the defendant in that action had perfected an appeal to the Supreme Court.</p>

Writ granted · Decided 1909-11-19

Spaulding, J.

¶1Without assenting to all that is said in the foregoing opinion, I concur in the granting of the writ for this reason: An appeal having been perfected from the judgment of the district court, that court had lost jurisdiction of the subject of suit money and alimony, and could make no valid order allowing any. If it had lost jurisdiction of the subject, and could not grant relief directly, it had no power to do it indirectly by making a condition to an order on another subject.

Ellsworth, J.

¶2I concur in the result and in the opinion generally, except upon the holding that mandamus is the only proper remedy to compel a trial court to settle a statement of the case when it wrongfully refuses so to do. On this point I am of the opinion that mandamus, while proper, is not under our statutes the exclusive, remedy.

¶3Note — Supreme Court may compel a district judge to settle a statement of the case according to law. Kaeppler v. Pollock, 8 N. D. 59. Supreme Court can settle a statement of the case when the trial court refuses to “in accordance with facts.” Taylor v. Miller, 10 N. D. 361, 87 N. W. 597. Until such refusal Supreme Court is without authority. Id.

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