Burcham v. Edwards

• Decision Date: 04 April 1913
• Docket Number: Case Number: 2535
• Citation: 37 Okla. 194,1913 OK 212,131 P. 528
• Parties: BURCHAM v. EDWARDS et al.
• Court: Oklahoma Supreme Court

1913 OK 212

131 P. 528

37 Okla. 194

BURCHAM v. EDWARDS et al.

Case Number: 2535

Supreme Court of Oklahoma

Decided: April 4, 1913

Syllabus

¶0 NEW TRIAL--Motion--Time of Filing. The filing of a written motion for a new trial, containing the grounds therefor, with the clerk of the court in which a case has been tried, within three days after the verdict or decision was rendered, is a sufficient compliance with the statute as to the time within which an application for a new trial must be made without an actual presentation of such motion to the court within the three days.

Error from District Court, Wagoner County; R. C. Allen, Judge.

Action by Ulysses M. Burcham against W. F. Edwards and Nathaniel Peters. Judgment for plaintiff, and, from an order granting a new trial, plaintiff brings error. Affirmed.

Lex V. Deckerd and W. D. Bynum, for plaintiff in error.

Z. I. J. Holt, and Stuart, Cruce & Gilbert, for defendants in error.

HARRISON, C.

¶1 This action was brought by the plaintiff in error, as plaintiff below who obtained a judgment against defendants in error, as defendants below, October 24, 1910. At noon of October 27th, court adjourned for a few days, but not for the term. On the afternoon of October 27th, defendants filed motion for a new trial among the papers in the case with the clerk of the district court. The motion remained among the papers, but was never called up by the moving party, nor was the attention of opposing counsel nor the court called to it during the remainder of the term, but at a subsequent term, which was held by a different judge to the one who tried the case in February, 1911, the motion was called up and presented by defendant. Plaintiff filed motion to dismiss defendants' motion on the ground that the application for a new trial had not been made at the term and within three days after the judgment had been rendered. The court overruled plaintiff's motion to dismiss and sustained defendants' motion for a new trial. Both these assignments are involved in the question whether the mere filing of the motion for a new trial in the clerk's office, without calling the court's attention to such motion on that day or at any subsequent day during the term, was a sufficient compliance with section 5827, Comp. Laws 1909, which requires the application to be made at the term and within three days after judgment. Said section 5827 reads:

"The application for a new trial must be made at the term the verdict, report or decision is rendered, and, except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented." (Section 4198, St. Okla. 1893.)

¶2 Section 5828 reads:

"The application must be by motion, upon written grounds, filed at the time of making the motion. The causes enumerated in subdivision two, three and seven of section 5825, must be sustained by affidavits, showing their truth, and may be controverted by affidavits." (Section 4199, St. Okla. 1893.)

¶3 Plaintiff in error contends that this statute requires more to be done at the term and within three days after judgment than the mere filing of a motion in the clerk's office. The gist of the contention is that the statute requires two things to be done: That is requires the filing of written grounds for the motion, either in open court or in the clerk's office, and then the presentation of such motion within the time and at the term, and that the mere filing of the written grounds in the clerk's office would not preserve the rights of the movant, unless the motion was formally made to the court or unless the court's attention was called to it in some way during the term and within the time. This may have been, and we must concede in all probability was, the original intention of the lawmakers. A number of states have followed the view embodied in this contention, as, Montana, Indiana, New York, Kentucky. But this identical question was before the Court of Appeals of Kansas in the case of Freelove v. Gould, 3 Kan. App. 750, 45 P. 454, in which the court said:

"The proposition, which is presented and argued with much skill and ability, is that it is not sufficient that the motion for a new trial be filed within three days after the verdict or decision complained of is rendered, but that the motion must have been actually presented to the court within that time. It is claimed that a written motion for a new trial is not required by the statute; that it may be a mere verbal application to the court, based upon written grounds on file at the time. So far as concerns this question, sections 308 and 309 (identical with sections 5827 and 5828, supra) of the Code provide that the application for a new trial must be made at the term the verdict or decision was rendered and within three days thereafter, upon written grounds filed at the time of making the motion. The contention is that the application must be made to the court; that the mere filing of a written application with the clerk, without its being actually called to the

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