Audia v. Denver & R.G.R. Co.

Decision Date27 January 1915
Docket Number2614
Citation45 Utah 459,146 P. 559
PartiesAUDIA v. DENVER & R. G. R. CO. et al
CourtUtah Supreme Court

Appeal from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Pietro Audia against the Denver & Rio Grande Railroad Company and another.

Judgment for defendants. Plaintiff appeals.

Appeal dismissed, with costs.

C. S Patterson, for appellant.

Van Cott, Allison & Riter for respondents.

FRICK J. McCARTY, J., STRAUP, C. J., concurring.

OPINION

FRICK, J.

The plaintiff commenced this action in the district court of Salt Lake County to recover damages for personal injuries against the Denver & Rio Grande Railroad Company and the Utah Fuel Company. Upon a trial the district court sustained a motion for nonsuit in favor of the railroad company and submitted the case upon the evidence to the jury against the fuel company. The jury found the issues in favor of said company and the plaintiff appeals.

We are met at the threshold with a motion to dismiss the appeal upon the ground that the same was not taken within the time required by our statute, namely, six months from the entry of the judgment. This court has persistently held that the six months begin to run from the time that the motion for a new trial, if one is filed, is denied, as that makes the judgment final and appealable. The record shows that notice of motion for a new trial in this case was filed March 7, 1913, and that the motion was denied on April 12, 1913. Notice of that fact was served on appellant on the same day. The judgment therefore became final and appealable on the day following and the six months within which to take the appeal expired on the 13th day of October, 1913. The notice of appeal in this case was not served and filed until the 20th day of January 1914, or more than nine months after the motion for a new trial was denied. Appellant, however, insists that his appeal is timely for the following reasons:

On the 12th day of July, or three months after the motion for a new trial had been denied, the appellant asked and obtained leave from the district court to file a second notice of motion for a new trial. This notice contained two grounds: (1) Errors in law occurring at the trial, and (2) newly discovered evidence. The first ground had also been included in the first motion, but the second ground had not. The only showing made to the district court to invoke its power or jurisdiction to grant leave to file a second notice of motion for a new trial was the usual and ordinary affidavit which, under the statute, must be filed in support of the ground for newly discovered evidence. The court made no findings with regard to the grounds or reasons upon which it allowed the appellant to file a second notice for a new trial and overruled respondents' objections which they interposed to the filing thereof. Respondents always have challenged, and they in this court challenge, the power or jurisdiction of the district court to authorize the filing of the second notice of motion for a new trial. Under our statute (Comp. Laws 1907, section 3294) an application or notice of motion for a new trial must be filed "within five days after the verdict of the jury * * * or after notice of the decision of the court." The court, however, may, if application is timely made therefor, extend the time beyond the five days, and to do so has become the uniform practice in this jurisdiction. We have held, however, that the district courts do not possess the power to allow the filing of a notice of motion for a new trial, or to amend one by including therein a new or independent ground after the statutory time, or a proper extension thereof, has expired. Blue Creek Etc., Co. v. Anderson, 35 Utah 61; 99 P. 444. In that case the appellant was permitted to amend its notice of motion for a new trial after the time for filing a notice of motion had expired by adding thereto a new and independent ground. The power of the court to allow the amendment was challenged in this court, and Mr. Justice Straup, in the course of the opinion in the case, says:

"The question is: Can a notice of motion for a new trial be amended by adding thereto a new and independent ground therefor after the expiration of the time allowed by the statute or enlarged by the court in which to serve and file such a notice of motion? The authorities are to the effect that the court in such case is without authority to permit such an amendment. (Citing authorities.) The original notice as filed was on the grounds of insufficiency of evidence to justify the verdict and errors in law occurring at the trial. The proposed amendment, newly discovered evidence, was not germane to anything contained in the original notice, but added an independent ground for the motion, and was, in effect, an offer to file a new notice." (Italics ours.)

It...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT