Plaintiff brought action in Clay county, Minnesota, to recover fees for his services to the defendant in the case of Mann v. Mann which reached this court. See 57 N.D. 550, 223 N.W. 186. While that action was pending he commenced this action in the district court of Burleigh county, North Dakota, for these same fees. He moved for a continuance of the Minnesota case and this was granted over the objection of the defendant, the hearing being set for January 13, 1930.
The Burleigh county case was No. 53 of the civil calendar for December, 1929. This term convened December 9th, and but one case had been tried by December 21, 1929.
On December 17, 1929, plaintiff moved the court to set this case for trial some time between December 26, 1929, and January 6, 1930. This motion was based on affidavits from Judge Buttz, and William Langer, counsel for the plaintiff. In his affidavit Judge Buttz said he was "entirely familiar and intimately acquainted and cognizant of the facts developed in the said case of Mann v. Mann in all its phases up to the time of the trial in the supreme court of North Dakota," and that he had been advised by the plaintiff that he "is a material witness in the above entitled case." He said that he was to preside at a term of the district court of Pembina county commencing on the 7th of January and therefore it would not be possible for him to be present as a witness in this case during the term in session, and further, it would be possible for him to come as a witness at any time between December *Page 728 27, 1929, and January 6, 1930. Nothing is said by anyone as to what his testimony would be, whether such testimony could be furnished by other witnesses, nor why his deposition could not be taken. Mr. Langer, in his affidavit, stated "he had been advised by a number of attorneys who are material witnesses — that they will be unable to be present and testify at the trial of the above entitled action after the 7th day of January 1930." He does not tell who these attorneys are, what they will testify to, whether their testimony could be furnished by other witnesses, or even where they reside. To his affidavit he attaches a letter from John F. Sullivan, who, he says, is "a material witness of the plaintiff in the above entitled action and the plaintiff herein cannot safely go to trial without him in attendance to testify at the trial of the above entitled action." In this letter Mr. Sullivan says that he expects to "leave Mandan and Bismarck on January 3, if matters run as I expect. I will be back to Mandan at noon on January 10th and will leave that evening for Hettinger, etc." He then gives his proposed itinerary from there and suggests "that you get your case on for trial so that my testimony would be had before the first of January."
The record is silent as to whether the court knew of the pendency of this motion, until December 21, 1929 — the time when it was presented to him. However on December 20, the district judge excused all the jurors, except those serving in the case on trial, until January 7, 1930, and on December 21, 1929 he dismissed the remainder, taking a recess until that date "subject to such business as may be legally brought before it." Whether this latter action was before argument on the motion or after does not appear.
The record is silent as to what took place before the court at the time the motion was argued; but the court granted Mr. Langer, counsel for the plaintiff, permission to file an additional affidavit embodying certain statements which apparently he had made before the court and which are not set forth in the record.
On December 26, 1929, Mr. Langer presented to the court his additional affidavit — stated to be made by permission of the court granted at the time of the argument — and therein says specifically that "he has communicated with C.W. Buttz and the said Judge C.W. Buttz who was the judge that presided in the action of Mann v. Mann, has promised to attend and testify if the case comes on for trial on the 9th or 10th of *Page 729 January, 1930." He also states in this affidavit, he consulted with the other lawyers who know about the material facts in the case mentioned, including Mr. Sullivan, and all of them agree to be present "particularly John F. Sullivan, who has stated he has arranged to have his cases at Bowman come on at a later date in order to accommodate counsel in the instant case and that he will be here on the 9th and 10th of January, 1930." It will be noted this second affidavit from Mr. Langer differs materially from his first affidavit, so far as the time at which Judge Buttz and Mr. Sullivan could be present is concerned.
This affidavit was not served upon the defendant, and we have a right to assume, therefore, plaintiff did not consider it necessary to serve the same because it embodied merely the statements which his counsel had made before the court at the time of the argument and therefore that counsel for the defendant would know its general contents. If this be so then the defendant was justified in believing plaintiff was not wanting to have the case heard until the 9th or 10th of January, and as all the defendant was opposing was the calling of the case prior to January 7th, the defendant would be satisfied. If this affidavit contained matter which was entirely new then it should have been served, and the trial court knew it was not served upon the defendant.
After this affidavit was filed the court — ignoring completely the statements in the affidavit made by plaintiff's counsel himself, that Judge Buttz, Mr. Sullivan and all the other witnesses for the plaintiff could be present to testify on the 9th or 10th of January, ignoring entirely the fact that he had already on the very day the matter was argued before him in Bismarck recessed the court until the 7th of January, ignoring the fact that this affidavit was not served upon the defendant or her counsel — made an order reconvening the term of court, reassembling the jury, and setting this case for trial on Friday the 3rd day of January, 1930.
We must remember this application to the judicial discretion of the Court is made by a party. It did not originate with the court. The court, when the matter was finally submitted, had already arranged the calendar, and recessed until January 7. The court was being asked to set case No. 53 ahead of all other cases. It certainly was incumbent *Page 730 on the plaintiff to make some showing. Even the court has no right to keep juggling with the calendar, arbitrarily.
This order of advancement is dated December 28, 1929, being a Saturday. The record shows no attempt made to serve this order upon the defendant, or to give her notice of the reassembling of the court, until the 31st day of December 1929. She knew the recess had been taken to the 7th of January and, if this second affidavit for the plaintiff contained the statement made by his counsel on the argument before the court, she knew the witnesses which plaintiff deemed to be so important to his case, agreed to be present on the 9th or 10th of January.
The method of service of this notice is extremely peculiar. The order was made in Jamestown, North Dakota, on December 28th, setting the case for trial January 3, 1930 at 10 o'clock A.M.; nevertheless the only method of service adopted was to send a copy of the order under special delivery, directed to the counsel for the defendant at Bismarck, which special delivery letter was mailed on the train, December 31 (three days after it was dated), and was served by slipping it under the door of the office of thecounsel for the defendant, — presumably in the hope and expectation he would be in his office that afternoon. The letter did not reach Bismarck until the afternoon of the 31st of December, and was discovered by defendant's counsel that evening. Thus defendant had but two full days to get ready, and one of these was a public holiday — New Year's Day.
The Judge who made this order was not present on the third of January and at his request Judge Grimson presided. At the time set the defendant opposed the advancing of the case to a date prior to the time set for the return of the jury on the ground that a witness for the defendant, her sister Minnie Ostrander, was a resident of Los Angeles, California, that she was an important witness, that the defendant could not go to trial safely without her testimony, and it would be impossible to take her testimony or secure her appearance in court to testify by the third day of January, A.D. 1930. It is true the affidavit in reference to the testimony of Minnie Ostrander is not as definite as it should have been, but we must remember the parties, in the argument for advancement or otherwise, were addressing themselves to a court fairly familiar with the situation and the general nature of the case, and therefore *Page 731 the counsel was not as specific as he would have been had he been addressing himself to a judge who was totally ignorant of the case.
Judge Grimson denied the motion and immediately an affidavit for change of Judges was filed. Judge Lowe was appointed to preside and though his residence is in Minot where his chambers are, he was able, fortunately, to be present immediatley for the trial of the case. The defendant made a motion to vacate and set aside the order advancing the case for trial. This motion is dated the 3rd of January, 1930 and sets up the situation with reference to Minnie Ostrander and further shows that Minnie Ostrander if present would testify "as to all the details of the proceedings had and held in Court, during the year of 1926, and the year of 1997, in the case of George D. Mann, Plaintiff v. Beatrice Mann, Defendant, in which case the Plaintiff herein seeks to recover a Judgment for $10,000 for his services as Attorney, and further, that she was a stockholder in the Bismarck Tribune Company, a corporation, prior to the re-organization of the Tribune Company, a corporation. That she will testify as to the service rendered by the Plaintiff to the Defendant, that she, the said Minnie Ostrander, knows and will testify to the Ownership of the Capital Stock, the physical value of the Bismarck Tribune business for the years next preceding the commencement of the suit of George D. Mann, Plaintiff against this Defendant. That her testimony is vitally important to the case of the Defendant herein, that she cannot safely go to Trial without her testimony — and that it will be impossible to secure her testimony by taking a Deposition or by securing her presence to testify."
Apparently this motion was heard by Judge Lowe on the 4th of January. It was promptly overruled and the case ordered to proceed to trial. At the drawing of the jury defendant renewed objections and added a multitude of reasons which we need not set forth — many of them having no real bearing on the case.
As stated in the majority opinion the defendant claimed the order setting the case for trial on January 3rd had taken her by surprise and she could not safely proceed to trial before the 7th of January.
As shown in the majority opinion the defendant appealed to this court and the opinion of this court, recorded 59 N.D. 611 et seq., shows the matter attempted to be litigated at that time. We held these orders *Page 732 were not appealable, but could be reviewed on an appeal from the judgment in the case in which these orders were made.
The defendant in this case, Minnie Ostrander her sister, and George Mann were all of the stockholders in the Tribune Company. The value of the property belonging to the Tribune Company, the interest of this defendant in that company, how much George Mann should pay to the defendant herein because of her interest in that company were all matters of extreme importance in the case of Mann v. Mann, being the case in which the plaintiff herein represented the defendant. In this case at bar plaintiff is suing for his fees and the defendant is claiming his services were of such a character that she lost heavily in the settlement, — in other words that he was negligent in the handling of the former case. All she was asking was to have the only stockholder in the case, other than herself and her former husband, present to testify as to the work done by the plaintiff for the defendant and as to the value of the property. It is claimed there is nothing to show that Minnie Ostrander knew anything about this; but defendant did set forth in a very general way the nature of her testimony. It is useless to say no attempt was made to take her testimony by deposition. No attempt was made to take the deposition of Judge Buttz or of these other witnesses for the plaintiff.
The affidavit of counsel for the defendant, opposing the advancement, does outline generally what Minnie Ostrander would testify to. If this be not specific enough what about the affidavits furnished by the plaintiff for advancement? These do not state even generally what the desired witnesses would testify to. Counsel for the defendant made some attempt to comply with the rules regarding such affidavits, but there was not even the pretense of showing what testimony the desired witnesses for the plaintiff would give.
These witnesses for the plaintiff all lived in North Dakota. There were twenty-two attorneys mentioned by Mr. Langer, the counsel for the plaintiff, in his affidavit of December 26 — the second affidavit — thirteen of them residing in Bismarck and nine in Mandan, only six miles away. Judge Buttz was residing in Devils Lake, just a few hours' ride from Bismarck.
To accommodate the plaintiff and these witnesses the court, after having recessed, ordered a reconvening of the term, the reassembling *Page 733 of the jury and the advancement of the case for four days — giving the defendant three days' notice by having a letter slipped in under the door of her counsel's office — whereas the only witness she had, in addition to herself, to show the value of this property and her own interest therein was her sister who lived in Los Angeles some three or four days' distance. It is all right to say the defendant should have had her sister there waiting all of this time. The plaintiff should have had his witnesses there waiting all of this time.
A great cry was made in the district court that the case had to be heard before the third of January because of Judge Buttz and Mr. Sullivan; but the strange feature of the case is that Judge Buttz, about whose duties so much has been said, and who in his affidavit said he could not be there unless the case was tried before the seventh, was at the trial of the case on January 7, was not called to testify until 5:45 P.M. that day, and continued his testimony until about 8 P.M. of that day. These facts appear on the record of this case in the office of the clerk of the district court, though they do not appear on the record in this court. I had the clerk of the court give me the facts. In addition John Sullivan was not even called as a witness, though his home is in Mandan six miles away, and there is nothing in the record showing he was out of reach of the court.
It may be said Minnie Ostrander could have been there by that time; but we must remember the defendant knew the court had been recessed until the seventh of January, and that her case was No. 53 on the calendar of a court which was to re-convene on January 7. She was given three days — one of which was a holiday — to get her sister here. She knew it was useless to try. By the time she got word to her, and she reached here it would be too late. According to the usual custom, of which we may take judicial notice, cases of such importance as this one are generally set for a date certain, with reasonable time in advance given so that parties may have their witnesses present. It is true that defendant had no right to insist on this method; but she had a right to believe her case would be treated the same as any other case. Why all this sudden hurry? Was it to try the case here before the Minnesota case was called? Three times plaintiff sued the defendant for these fees — once in Minnesota, once in Cass county, which case was dismissed, and then this case in Burleigh county. *Page 734
Motions for advancement, continuances, etc., are "not a game of matching affidavits;" but a lawsuit is the method prescribed by civilized people to ascertain the truth of a controversy, and the very essence of the method is that each party be given a fair and full opportunity to present his case. It is not a game of wits between attorneys, nor a game of skill like chess. Counsel for the defendant may not have had a very clear conception of the technical rules, the procedure, and what was necessary to protect his client's interests, but he certainly presented to the three different district judges enough to show each of them that a case of such extreme importance to both sides was being "jockeyed" — by one or both sides if you please. He showed that the action of the court in setting the case for trial on January 3, 1930 was against the wishes of both sides — for we must not forget the plaintiff himself wanted the case tried on the 9th or 10th of January as shown by the second affidavit of Mr. Langer — and was an arbitrary proceeding. When in addition to this the method of service of notice is considered and we consider that all defendant was asking for was that the case be deferred until the 7th of January, one cannot help but wonder whether it had not been temporarily forgotten that the defendant's rights should be considered, even though she may not have technically complied with precedents. We must not overlook the fact that even this "notice," which was served by slipping under the door of her counsel's office, was not a notice to him nor to the defendant. It was merely a purported copy of the order to the Clerk reassembling the jury and reconvening the term. Outside of the address upon the envelope — Hon. F.O. Hellstrom, Attorney at law, Bismarck, N. Dak. — there was nothing to indicate any notice to either Mr. Hellstrom or the defendant. There was no word or syllable therein from the Judge on any matter whatever; nothing to show from whom it came, except that the envelope had the return card of the judge upon it. It was left to Mr. Hellstrom to guess that the judge had sent him a copy of the notice under special delivery, for there was a "special delivery notice" accompanying the envelope with an (X) mark placed before this legend "Has been placed under your door," referring to a special delivery letter. Apparently the order dated December 28th had been filed with the clerk, the copy marked and filed; and in some manner the Judge received the copy, for the copy received by Mr. Hellstrom had the notation: "Filed in the office *Page 735 of clerk of district court, Burleigh county, North Dakota, December 31, 1929." However, there was nothing to indicate when the order was sent to the clerk.
The majority opinion says "the only question then is whether or not there was an abuse of judicial discretion." That is the situation. The majority opinion says "This record clearly shows there was not." The opinion then goes on to show that the defendant had "every reason to anticipate that the case might be advanced upon the calendar, not later than the 6th of January, 1930." I believe the record shows the defendant had every reason to anticipate that the case would not be called for trial before the 9th or 10th of January; for this was the date asked for by the plaintiff who was urging advancement.
Of course the court has control of the calendar; but there must be some certainty and assurance given to litigants. The calendar is not the private possession of the judge, nor should he change his mind over night without reason. It is true the court has the power to alter the arrangement of cases, without application, when the interests of justice require the change; but such change is not to be made ruthlessly and without fairness to both sides.
To my mind the case presents such a gross abuse of discretion on the part of the trial court, contributed so much to the disorganization of defendant's case that any failure on the part of counsel for the defendant to outline properly and specifically the technical matters generally necessary should be overlooked. We have no right to assume Minnie Ostrander knew nothing worth while about the case, or that her testimony would have no effect. If this action be the "sound judicial discretion" mentioned in the syllabus of this case, it is difficult to understand what is necessary to show "unsound" action. The record in this case shows that prior to the trial the plaintiff offered to take $4,000 for his services and yet the jury gave him $9,000. I am not saying the verdict is not fair, nor am I considering it. I say it should not be considered nor the trial considered.
A right result must be reached in a right way. Confidence in fairness to both sides must reign or the justice we render is open to suspicion. No litigant has a right to needlessly delay the court; but far better a three days' delay than foster a situation where a litigant feels his rights are treated cavalierly, and dealt with impatiently. It is not *Page 736 a sufficient answer to say there is nothing to show the result would have been different. The situation must be determined as of the date when this controversy arose and under the facts known at that time. After a review of this situation I feel I must dissent.