Blue Creek Land & Live Stock Co. v. Anderson
| Decision Date | 12 January 1909 |
| Docket Number | 1931 |
| Citation | 35 Utah 61,99 P. 444 |
| Court | Utah Supreme Court |
| Parties | BLUE CREEK LAND AND LIVE STOCK COMPANY, a Corporation, Appellant, v. ANNIE ANDERSON et al., Respondents |
APPEAL from District Court, First District. Hon. W. W. Maughan Judge.
Action in trespass by the Blue Creek Land & Live Stock Company against Annie Anderson and others. From a judgment for defendants, plaintiff appeals.
AFFIRMED.
Messrs Thomas, Richards & Porter for appellant.
J. C Walters for respondents.
This is an action in trespass. The plaintiff alleged in its complaint that it was the owner and entitled to the possession of the east half of section 32 and the southwest quarter of section 33, in township 15 north, range 5 west, Salt Lake meridian, and that the defendants, without right, claimed an interest in a strip of said lands 470 feet wide along the southern portion thereof, and had wrongfully entered and had trespassed upon it to plaintiff's damage. The defendants denied plaintiff's ownership and right of possession to all the lands described in the complaint, and that they had entered or had trespassed on any part thereof. They alleged that they were the owners and entitled to the possession of parcels of land in sections 4 and 5 in township 14 north, range 5 west, Salt Lake meridian, and lying immediately south of the lands described in plaintiff's complaint; that plaintiff's cause of action was barred by the statute of limitations, and pleaded an estoppel resulting from possession and the making of valuable improvements. The case was tried to the court and a jury. A verdict was rendered in favor of the defendants, upon which a judgment was entered on the 14th day of March, 1907.
The court gave plaintiff thirty days' additional time, or to and including the 18th day of April, within which to file a notice of intention to move for a new trial. Within such time, and on the 30th day of March, the plaintiff served and filed such a notice on the grounds of (1) insufficiency of evidence to justify the verdict and that the verdict is against law; and (2) error in law occurring at the trial and excepted to by the plaintiff. On the 11th day of May, nearly a month after the time had expired in which to serve and file a notice of intention to move for a new trial, the plaintiff made application to amend the notice by adding a new ground, that of newly discovered evidence, supported by affidavit showing the discovery and materiality of the evidence. The court on the defendant's objection refused the amendment. The motion was submitted on the original notice as served and filed, and was on a subsequent day overruled. The ruling refusing the amendment is expressly assigned as error.
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. (Dutton v. Seevers, 89 Iowa 302, 56 N.W. 398; Aultman, Miller & Co. v. Leahy, 24 Neb. 286, 38 N.W. 740; Perry v. Eaves, 4 Kan. App. 26, 45 P. 718; State v. Mason, 18 Mont. 362, 45 P. 557; Culp v. Steere, 47 Kan. 746, 28 P. 987; Packer v. Doray, 98 Cal. 315, 33 P. 118.) 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 a new and independent ground for the motion, and was, in effect, an offer to file a new notice. If the amended notice had been an amendment of anything contained in the original notice, or had properly specified something that was insufficiently specified in the original notice, we would have before us another question. We think no error was committed in the ruling.
The only other point discussed by appellant is the insufficiency of evidence to justify the verdict, or that the verdict is contrary to and against the evidence. At the outset counsel for respondent has challenged our authority to review such a question because the matter was not sufficiently assigned as error to entitle us to review it. The only assignment touching upon the matter is the general assignment that "the court erred in denying plaintiff's motion for a new trial." It is argued that since the motion for a new trial was based on the ground, among other grounds, of insufficiency of evidence to justify the verdict, the general assignment that the court erred in overruling the motion is sufficient to properly bring before us for review the question of insufficiency of evidence, as well as all other matters stated in the notice as grounds for a new trial. If the argument is sound, it leads to the conclusion that, if a motion for a new trial is made on all the seven grounds enumerated in the statute--(1) irregularity in the proceedings, etc.; (2) misconduct of the jury; (3) accident or surprise; (4) newly discovered evidence; (5) excessive damages; (6) insufficiency of evidence to sustain or justify the verdict or decision; (7) error in law occurring at the trial--a general assignment that the court erred in overruling the motion would bring before us for review, not only all portions of the charge to which exceptions had been taken, the refused requests, the rulings made in admitting and excluding evidence, and all other rulings made during the trial, but also all matters and things pertaining to the six other grounds stated in the motion for a new trial. To what specific matter or thing would such a general assignment point? How could it be said that such a general assignment would apprise the...
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