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19 ND 722

Folsom v. Norton

North Dakota Supreme Court

Decided January 25, 1910

North Dakota Supreme Court · decided 1910-01-25

<p>Appeal and Error — Statement of Case — Extension of Time, for Settlement — Sufficiency of Affidavits.</p> <p>ll In this case the judgment was entered September 3, 1998,. On September 24, 1998, on the affidavit of Peter Trader, clerk of the district court of Eddy county, in which-he stated that C. J. Maddux, (one of appellant’s attorneys), had been several times after the files in said action, including the depositions, testimony, and exhibits, but that affiant was unable to give.them to said Maddux for the reason that they had not been returned by the court since rendering judgment in said cause, and on the affidavit of said C. J. Maddux that the original files and.depositions were not in the office of the defendant’s attorneys, that the clerk of said court informed him, the said Maddux, that the said files, depositions and testimony taken were with the court, for which reason the said counsel had been unable to prepare, serve, and have settled a statement of the case, and that it would be necessary to have a settled statement on appeal, the district court made an ex parte order •extending the time for settlement of the statement of the case until March 1, 1909. On February 6, 1909, a proposed statement of the case was served upon plaintiff’s attorneys. On or about February 12, 1909, -plaintiff’s attorneys served upon defendant’s attorneys, by mail, amendments to the proposed statement of the case and also served at the same time objections to the service, allowance, or settlement of any statement of the case, for the reason that the time for such service had long since expired, and that no' good cause had been shown for •extending the time, which objections were supported by the affidavit of J. E. Robinson, one of the plaintiff’s attorneys.</p> <p>On February 23, 1909, the parties respectively, were represented by counsel and respondent’s counsel interposed objections to the settlement. and allowance of the statement, as 'hereinbefore stated. The court overruled said objections and made an order settling the statement of the case. In this court a motion to strike the statement from the record -was granted. We 'hold that the affidavits of Peter Prader and C. J. Maddux, upon which the order extending the time for settlement of the statement of the case was made do not show any sufficient reason for extending said time.</p> <p>Judgment Justified by Findings. .</p> <p>2. Upon consideration of the pleadings and the findings of the trial court, held, that the judgment entered by the trial court was fully justified by such findings.</p>

Affirmed · Decided 1910-01-25

Spalding, J.

¶1I concur in granting the motion to strike out the statement of the case. The evidence in this case was all taken in the form of depositions, and it required only a few minutes work on the part of .attorneys and court stenographer to put it into the shape of a proposed.statement, thus making any great length of time entirely unnecessary to prepare it. The fact that the judge had in his possession the record does not relieve appellant’s counsel of the necessity of making an effort to procure it, and it nowhere appears that they ever applied to the judge for the record, as they should'have done after learning from, the clerk where the record was.

¶2I also concur in the affirmance of the judgment; but not because I think the findings show any fraud on the part of the mortgagee. I aim o.f the opinion that the receipt of the rent by the purchaser, who was the mortgagee, which accrued. during the year allowed for .redemption, and which amounted to more than the debt, worked a redemption. Norton could have taken the rent before the year of redemption expired, and the fact that he did not take it until he had obtained the sheriff’s deed should not effect the question. AVhere the rental equals or exceeds the amount necessary to redeem, the ceremony of redemption by the mortgagor and an accounting by the purchaser would be idle, and I am of the opinion that the law *727does not contemplate it. In this case Norton held a second unforeclosed mortgage, and the excess of rent' over the amount necessary • to redeem from thé sále would apply on the second mortgage.- The judgment of the trial court and the decision of this court works this result, although not so stated in the opinion, and my only object in concurring specially is to make it clear-that I do not assent to any findings of fraud.

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