Blonde v. Merriam
Decision Date | 19 July 1913 |
Docket Number | 735 |
Citation | 133 P. 1076,21 Wyo. 513 |
Parties | BLONDE v. MERRIAM, ET AL |
Court | Wyoming Supreme Court |
ERROR to the District Court, Fremont County, HON. CHARLES E CARPENTER, Judge.
The material facts are stated in the opinion.
Affirmed.
V. H Stone and L. E. Winslow, for plaintiff in error.
The striking of the motion for a new trial from the files was equivalent to overruling and denying the same, so that if the order striking the motion was error the court may here consider the questions presented by said motion, under the assignments of error. Since the decision of Kent v Upton, 3 Wyo. 43, holding that the time for filing motion for new trial cannot be extended upon an ex parte application without a showing that the party was unavoidably prevented from filing the same within the period then fixed by statute therefor, there has been a material change in the consideration of technical rules of practice not affecting the substantial rights of the parties, and a change has also occurred in the statute with reference to the right of the court to extend the time for filing pleadings. (Comp. Stat. 1910, Sec. 4418.) This change in the statute has the effect of enlarging the power of the court to extend the time. (Todd v. Peterson, 13 Wyo. 513; Casteel v. State, 9 Wyo. 267.) If additional time may not be had upon an ex parte showing the provision of the statute is of little practical value, since ordinarily when it appears necessary to apply for an extension of time there will not remain sufficient time before the lapse of the statutory period within which to make a full showing and give notice of the application to the adverse party. In California the general statute for extending time for filing pleadings is held to apply to motions for a new trial. (Simpson v. Budd, 91 Cal. 488; Burton v. Todd, 68 Cal. 485; Harper v. Minor, 27 Cal. 113; see also Bailey v. Drake, 12 Wash. 99.) Again, by Section 4438, Comp. Stat. 1910, it is required that in every action the court shall disregard any error or defect in the pleadings or proceedings not affecting the substantial rights of the adverse party. In the furtherance of justice it would seem that the plaintiff in error was entitled to a hearing and determination of its motion upon its merits; it having been filed within the time granted by the court, and the order extending the time not affecting the substantial rights of the adverse parties.
(It was further contended that the evidence and record disclosed error requiring a reversal of the judgment.)
W. E. Hardin and P. B. Coolidge, for defendants in error.
The provision of the statute governing motions for new trial in criminal cases is materially different from that providing for the filing of such motions in civil cases. In criminal cases the court is vested with some discretion in the matter, and for good cause shown may grant additional time. (Comp. Stat. 1910, Sec. 6287.) A motion for new trial is not a pleading and therefore the statutory provision for extending the time for filing the pleadings is not applicable. (McDermitt v. Halleck, 65 Kan. 403, 69 P. 335.) The cases of Kent v. Upton, 3 Wyo. 43, and McLaughlin v. Upton, 3 Wyo. 48, referred to with approval in Todd v. Peterson, 13 Wyo. 513, are decisive of this case upon the question presented by the order striking the motion for new trial from the files. The statute in force at the time of those decisions is identical in all material respects with the present statute. There is no injustice in the statute prescribing the time for filing a motion for new trial, or in the construction thereof by the decisions in the cases cited. Before verdict or final judgment the statute is very liberal in allowing amendments to pleadings, and assisting litigants in arriving at and having determined the true issues involved; after verdict or final judgment it has been deemed wise by the legislature to eliminate all dilatory and uncertain tactics, and requiring of litigants seeking to set aside a verdict or final judgment a definite and exacting mode of procedure.
The plaintiff in error, Charles E. Blonde, was the defendant in the District Court. It appears that a partnership had existed between him and the plaintiffs below, Edward Merriam and William Madden, and that the same had terminated, and the action was brought for an accounting and to recover the amount which might be found to be due the plaintiffs from the defendant, the petition alleging a stated amount to be due. Upon the evidence, which was taken before a special master commissioner, and reported to the court with the commissioner's findings, the defendant was found by the court to be indebted to the plaintiffs, and judgment was rendered for the amount so found to be due. This proceeding in error is brought to reverse that judgment. No ground for reversal is here suggested that could not have been properly assigned as ground for new trial, and, therefore, under the rule and decisions of this court the filing of a motion for new trial, the overruling thereof, and an exception thereto, would be necessary to a consideration of the questions involved. A motion for new trial was filed by the defendant, but the court ordered it stricken from the files, on the motion of plaintiffs, on the ground that it was not filed within the time allowed by the statute. That order was excepted to and is assigned as error. The major portion of each brief is devoted to a discussion of that assignment, it being contended by counsel for plaintiff in error that the motion was timely filed, because within the time allowed by an order extending the time, and that the order striking it from the files is equivalent to an order overruling the motion, if it was filed in time. Opposing counsel, on the other hand, contend that the order extending the time was unauthorized and invalid, and that the motion was, therefore, not filed in time to entitle it to any consideration, and was properly stricken from the files.
A bill of exceptions is in the record showing the motion that was filed, the disposition made of it, and the facts relating thereto. The record discloses the following facts respecting the matter: The findings of the court and judgment were rendered July 15, 1911, that being one of the days of the May, 1911, term of the court. An order, appearing in form as a court order, was signed by the district judge, dated July 24, 1911, and filed July 29, 1911, reading as follows (omitting the caption, signature and date):
"Upon the application of the defendant, Charles E. Blonde, and for good cause shown, it is hereby ordered that the time for the filing of the motion for a new trial in the above entitled cause is hereby extended to and including the 1st day of August, A. D. 1911; and said defendant is now and hereby given to and including the 1st day of August, A. D. 1911, within which to prepare and file his motion for a new trial of said cause." On July 29, 1911, more than ten days after the rendition of the judgment, the defendant filed his motion for new trial. At the November term the motion was presented to the court and argued by counsel for defendant below, counsel for plaintiffs being present. Thereupon the argument was suspended at the court's suggestion and by agreement of the parties, to permit the preparation and filing of written briefs. On or about January 29, 1912, the defendant's attorneys filed with the judge of said court and served upon the attorneys for the plaintiffs their brief in support of the motion, the same being set out in full in the bill of exceptions, discussing the questions presented by the exceptions to the findings, and contending that the same were not supported by the evidence. On the 12th day of May, 1912, the attorneys for plaintiffs served upon the defendant's attorneys their written brief opposing the motion by a discussion of the questions thereby raised.
On May 14, 1912, while said motion for new trial was pending before the court, and, as stated in the bill, before the motion had been finally submitted, the plaintiffs made and filed their motion to strike the defendant's motion for a new trial from the files, on the ground that it was not filed in time and, therefore, a nullity. The motion to strike recited the date of the judgment, the date when the motion for new trial was filed, the fact that it was not filed within ten days after the rendition of the judgment, and that it does not allege newly discovered evidence, or that the defendant was unavoidably prevented from filing the same within ten days from the rendition of the judgment; that no showing was made to the court prior to its filing that the defendant had been unavoidably prevented from filing the same within said ten days; and alleging that defendant was not unavoidably prevented from filing the motion within that time. It was recited also that an order of court had been filed in the cause on July 29, 1911, purporting to extend the time within which to file the motion for new trial to August 1, 1911; and it was alleged that said order was granted upon an ex parte application, that neither the plaintiffs nor their attorneys had any notice or knowledge that such an order would be applied for, or that the same had been entered until after it was filed as aforesaid, and that said order was granted without any written application or petition therefor, and was, therefore, ineffective. The motion to strike was supported by affidavits. On June 29, 1912, an order was made and entered sustaining the motion to strike. That order recites that the motion of the plaintiffs to strike defendant's motion for new trial came on for hearing; that the plaintiffs appeared in person and by...
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