Bates v. Woodward

• Decision Date: 06 October 1919
• Docket Number: 9149.
• Citation: 185 P. 351,66 Colo. 555
• Parties: BATES v. WOODWARD.
• Court: Colorado Supreme Court

185 P. 351

66 Colo. 555

BATES v. WOODWARD.

No. 9149.

Supreme Court of Colorado, En Banc.

October 6, 1919

Rehearing Denied Dec. 1, 1919.

Error to District Court, Delta County; Thomas J. Black, Judge.

Action by H. E. Woodward against W. E. Bates. To review a judgment for plaintiff, defendant brings error.

Writ dismissed on plaintiff's motion.

William v. Hodges, George K. Thomas, and D. Edgar Wilson, all of Denver, for plaintiff in error.

Stewart & Stone and C. H. Stewart, all of Delta for defendant in error.

BURKE J.

H. E Woodward was plaintiff and W. E. Bates defendant in the trial court, and the parties are hereinafter so designated.

The verdict of the jury was returned February 26, 1913, and there being no order of court reserving the case for further consideration, and no stay of proceedings, judgment was entered by the clerk on the same day, as provided by section 224, chapter 18, of the Code. On March 3, 1913, and within the time allowed by the court, defendant filed his motion for a new trial. This motion was argued December 20, 1916, taken under advisement, and overruled January 8, 1917.

April 26, 1913, a special execution was issued, property sold thereunder, and return made April 30, 1913. February 26 1917, defendant moved for entry of judgment against him as of date January 8, 1917, for the reason that----

'Said motion for new trial was not called up for hearing nor argued before the court until the 20th day of December, 1916, at which time said motion of this defendant, W. E. Bates, for a new trial was taken under advisement, and was denied by the court on January 8, 1917, and that, therefore, judgment should then have been rendered on January 8, 1917.'

This motion he supported by an affidavit, which, among its other recitals, contains the following:

'Affiant has made application to the Supreme Court of the state of Colorado for supersedeas, and filed in the Supreme Court of Colorado a verified statement for additional time pending supersedeas application, which was filed in said Supreme Court on February 6, 1917, and the said Supreme Court granted additional time, and until April 1, 1917, in which to perfect said supersedeas application.'

On the same day defendant moved to set aside the judgment of February 26, 1913. Both of these motions came on for hearing on the date they were filed, and both were overruled. February 6, 1917, this cause was filed herein, and writ of error issued out of this court. May 10, 1917, plaintiff moved to dismiss the proceeding in this court because it was barred by lapse of time. This motion was heard June 15, 1917, and overruled, with leave to renew it on final hearing. It was so renewed and argued in this court, and is the sole question necessary for our consideration at this time.

Plaintiff contends that the time limited within which a writ of error might be sued out began to run February 26, 1913, when judgment was in fact entered by the clerk. We cannot sustain this contention.

'If a motion or a petition for rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of.' Kingman v. Western Mfg. Co., 170 U.S. 675-678, 18 S.Ct. 786, 787 (42 L.Ed. 1192).

'When the motion for a new trial was interposed in due time, it reserved the cause for further consideration.' Catlin v. Vandegrift, 58 Colo. 289-292, 144 P. 894, 895.

Hence in this case the time would begin to run on the date of the final disposition of the motion for a new trial, provided that hearing were in apt time under all the circumstances, that being the date when the judgment of the trial court became final for the purpose of the prosecution of a writ of error.

Was the hearing of the motion for a new trial in apt time so that defendant can now claim the benefit of the rule above mentioned?

At common law a motion for new trial was made after verdict and before judgment; hence made at the term at which the cause was tried (Kingman v. Western Mfg. Co., supra), and, in the absence of special circumstances so permitting, was heard at the same term. This on the principle that the law does not countenance unnecessary delay, and that one who has prosecuted his cause of action to a successful determination is not to be deprived of the fruits thereof by the dilatory tactics of his adversary.

The common-law rule was expressly enacted in this state by section 201 of the Code of 1877, which provided:

'The motion for a new trial and decision thereon shall be made and had at the same term the findings were made or the verdict rendered.'

So far as the requirement that the decision should be at the same term that section of the old Code was held directory and not mandatory for the reason that----

'It not unfrequently happens that these motions are presented and argued or submitted upon briefs, on the last day of the term. In many instances they require a thorough review of the evidence, and they often involve the examination of authorities not previously brought to the attention of the court. If the provision is to be held mandatory, the effect will be to require many of these motions to be decided without due consideration, a result which will defeat the spirit and intent of the statute.' Gomer v. Chaffe, 5 Colo. 383-386.

In recognition of that interpretation, and the reason upon which it was based, the Code of 1887 extended the time when the motion might be heard to the succeeding term, thus obviating the difficulty which prompted the decision.

'The motion for a new trial * * * shall be filed within five days after the verdict is rendered * * * and at the same term; * * * and when for any cause such motion cannot be heard at the term when filed, the same may be heard at the succeeding term.' Section 218, chapter 17, Code of 1887.

In Walker v. Hale, 16 Ala. 26, the rule as adopted in Gomer v. Chaffe, supra, was announced; but the court there further expressly held that:

'There must be an end of litigation, and a time must come when the power of the court over the judgment must cease, notwithstanding the motion may not have been disposed of.'

In another of the early cases it is said:

'Our law has wisely provided that motions of the character now before us shall be made at the trial term. It should be a very clear case, indeed, that will warrant the entertaining of such motion after that time, for if allowed at the next term, so it might at the second, or any subsequent term; and a judgment plaintiff or defendant would never know when their legal rights were finally settled or concluded. * * * The law primarily contemplates the disposition of such motions at the trial term, and they should never be continued, except from the necessity of the case.' Laird v. Ashley, 1 Iowa 570, 571.

In further recognition of this salutary rule our present Code provides:

'The hearing on a motion for a new trial shall be had at the earliest period practicable after the filing of the motion.' Section

...