The defendant has petitioned for a rehearing. In the petition it is pointed out that the order denying the motion for a new trial recites that the trial court has "written a memorandum opinion setting forth his reasons for denying plaintiff's motion for a new trial" and that "pursuant to and because of the reasons fully set forth in the memorandum opinion filed herein it is hereby ordered that plaintiff's motion for a new trial should and the same is hereby in all things denied." And it is argued that consequently the order constituted a finding of fact by the trial court and that the court's conclusions as to the facts established by the evidence upon the trial stated in the memorandum of decision must be given the same effect as the findings of fact in an action tried to the court. This matter was fully considered in the former opinion and we adhere to what was there said: — The statement by the trial judge of his reasons for denying a new trial does not have the effect and is not accompanied by the same presumptions which attach to the findings of fact in an action tried to the court. We are agreed that, giving due weight to what is affirmatively disclosed by the record including the reasons assigned by the trial court for denying the motion for a new trial, the presumption of prejudice resulting from the communication by the trial judge with the jury has not been overcome and such error has not been shown to be non-prejudicial. *Page 161
The petition for rehearing is supplemented by a motion on the part of the defendant that in the event the petition for rehearing is denied, this court "makes its order" remanding and returning the record in the case to the district court: — (1) "For a determination of the issue raised by defendant's motion for a directed verdict or so a motion for judgment notwithstanding can be made, or if this can not be granted"; (2) "So that the order denying the motion for a new trial can be amended to show specifically and other than by reference that the motion for a new trial was denied because no case had been made by the plaintiff, or if this can not be granted"; (3) "So that a transcript of the evidence may be secured and settled as part of the record herein, and after proper certification transmitted to this court"; and (4) Staying all "further proceedings in this court and holding the final determination of the appeal in abeyance until the trial court acts and certifies the record back to this court."
In support of the motion defendant has filed a brief wherein attention is called to a former case wherein this court remanded the record to the trial court with leave to the parties to apply for the settlement of a statement of the case. The situation presented in that case and the one presented here are quite different. In that case the basic error assigned by the appellant (the plaintiff) was the ruling of the trial court in directing a verdict for the defendant.
The judgment recited that the defendant at the close of the testimony moved the court to direct the jury to return a verdict for the dismissal of the action; that the court granted the motion and that verdict was returned accordingly. There was no statement of the case but the appellant presented as a part of the record on appeal a certified copy of the minutes of the clerk. Such minutes recited that the defendant moved for a directed verdict; that the plaintiff resisted the motion; that the motion was granted and verdict directed accordingly. The law in force at the time of the trial provided that when a party moves the court to direct a verdict in his favor "and the adverse party objects thereto, such motion shall be denied and the court shall *Page 162 submit to the jury such issue or issues within the pleadings on which any evidence has been taken as either or any party to the action shall request." Ch 245, Laws 1935.
The only thing in the record tending to show that the plaintiff had objected to the granting of the motion for a directed verdict was the recital in the clerk's minutes, — the judgment did not recite that such objection was made. The respondent contended that the clerk's minutes were not part of the judgment roll unless and until they were made a part of a settled statement of the case; that hence the recital in the minutes could not be considered and therefore the record failed to show that there had been objection by the "adverse party" to the granting of the motion for a directed verdict. With this condition of the record the plaintiff requested that the record be remanded to the district court to the end that the defect in the record might be supplied and that an opportunity might be afforded to have a statement of the case settled and certified showing what had transpired upon the trial anterior to the direction of the verdict, including the objection made by the defendant to the granting of the motion for a directed verdict. While there was objection by the respondent to the motion to remand it was not denied that the plaintiff had in fact objected to the granting of the motion for a directed verdict, and this court remanded the record with leave to the parties to apply to the trial court for a settlement of a statement of the case.
In that case it seemed probable that the appellant had been deprived of a substantial right by the ruling of the trial court, and it was clear that he was wholly without any remedy of correction (14 Enc Pl Pr p 982) other than a review of the assigned error on the then pending appeal. Such review could be had only if the record were supplemented by a statement of the case showing that plaintiff objected to the granting of the motion for a directed verdict. Hence, unless permission were granted to remand the record with leave to the parties to apply to the trial court for settlement of a statement of case, the result would be not only that the error sought to be reviewed *Page 163 could not be reviewed, but the action itself would be finally determined. In other words, unless the record were supplemented by a statement of the case, the result would be a final determination of the action — a determination which would dispose of the cause on the merits without appellant being afforded an opportunity to have a review of the ruling which the record indicated probably was erroneous and which might have operated to his prejudice.
The situation in this case is quite different. Under the decision in this case no rights of the parties are finally determined. The decision only opens "the way for a reinvestigation of the entire case upon its facts and merits." Pengilly v. J.I. Case Threshing Mach. Co. 11 N.D. 249, 255, 256, 91 NW 63.
The parties to an action are entitled to a fair trial. The record in this case shows that the plaintiff did not have a fair trial. Upon a retrial presumptively both parties will receive a fair trial. We are of the opinion that the interests of justice will be best subserved by remanding the case for a new trial. The petition for a rehearing, and the motion to remand are denied.
MORRIS, BURKE, NUESSLE and BURR, JJ., concur. *Page 164