Thress v. Zemple
North Dakota Supreme Court
Appeal from judgment entered in District Court, Stark County, •Crawford, J., for the plaintiff, and from an order refusing to vacate ¡the same. When the remittitur says, “Order affirmed and case remanded for further proceedings,” it means that the order of the lower court granting new trial is upheld, and that the case must he retried in lower court. 4 C. J. 1113, § 3095; Schumacher v. G-. N. R. Co. 23 N. D. 231; Comp.
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Appeal from judgment entered in District Court, Stark County, •Crawford, J., for the plaintiff, and from an order refusing to vacate ¡the same. When the remittitur says, “Order affirmed and case remanded for further proceedings,” it means that the order of the lower court granting new trial is upheld, and that the case must he retried in lower court. 4 C. J. 1113, § 3095; Schumacher v. G-. N. R. Co. 23 N. D. 231; Comp. Laws 1913, §§ 7643, 7844; Cahn v. Tootle (Kan.) 48 Pac. 919; Ball v. Rankin (Okla.) 101 Pac. 1105. The court cannot consider matters not properly before it. 4 C. J. 1112-1114;…
1DissentKobinson, J.
In this case a former appeal was heard and decided on July 10, 1918. A motion for rehearing was denied September 24, 1918 (40 N. D. 510, 169 N. W. 79). The court held thus:. “On the record and undisputed evidence the case presents no question of fact to submit to a jury. The court should have directed a verdict in favor of the plaintiff or allowed the motion for judgment notwithstanding the verdict.” That was a direction to the trial court to enter judgment in favor of the plaintiff. Hence, on filing the remittitur, judgment was entered in accordance with the decision of this court. On…
2Cases cited9 opinions
- Bronson v. KinzieSupreme Court of the United States · 1843
- McCracken v. HaywardSupreme Court of the United States · 1844
- Barnitz v. BeverlySupreme Court of the United States · 1896
- Planters' Bank v. SharpSupreme Court of the United States · 1848
- Louisiana v. New OrleansSupreme Court of the United States · 1880
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