Burnham v. Spokane Mercantile Co.

• Decision Date: 06 December 1897
• Citation: 18 Wash. 207,51 P. 363
• Court: Washington Supreme Court
• Parties: BURNHAM ET AL. v. SPOKANE MERCANTILE CO. ET AL.

51 P. 363

18 Wash. 207

BURNHAM ET AL. v. SPOKANE MERCANTILE CO. ET AL.

Supreme Court of Washington

December 6, 1897

Appeal from superior court, Spokane county; L. H. Prather, Judge.

Action by James K. Burnham and others against the Spokane Mercantile Company and others, in behalf of themselves and all other creditors who might come in, praying an order restraining defendants from disposing of certain judgments in favor of the company and the appointment of a receiver. From an order by the court after the entry of the final decree in the main case, allowing a certain claim in favor of respondents L. B Nash and L. G. Nash, partners under the firm name of Nash &amp Nash, against a fund in the hands of the court for distribution, plaintiffs appeal. Reversed.

Graves, Wolf & Graves, Blake & Post, John A Pierce, and S. & J. W. Douglas, for appellants.

John R McBride, for respondents.

DUNBAR J.

This is an appeal taken by the plaintiffs from orders made by the court after the entry of the final decree allowing certain claims against a fund in the hands of the court for distribution, and directing the receiver to pay such claims from the funds in his hands. We will notice the second and third assignments of error, for, as we view the law governing the propositions involved in these assignments, they settle to a certain extent, the rights of the respondents in this case. It appears that the cause was tried originally before Judge Moore, one of the superior judges of Spokane county, and upon certain findings certain allowances were made to the respondents. The order of allowance to the respondents was made and entered by Judge Moore on January 6, 1897. A motion for a new trial was made by the respondents, and filed on January 8th. On January 9th the motion was taken up by Judge Moore, and denied. Shortly after the denial of this motion, Judge Moore's term of office expired, and Judge Prather, the judge-elect, took his place. Upon the advent of Judge Prather, the respondents moved him to vacate the order of Judge Moore refusing a new trial, and one of the reasons assigned for asking the vacation was that the motion was taken up without notice. We think there is nothing in the affidavit filed in support of this motion which would warrant the conclusion that there was any legal irregularity in the proceedings, even if we were permitted to consult the affidavit. The record, however, discloses that the respondents who filed the motion for a new trial were present in court when it was taken up, and that they duly excepted to the ruling that the matter was brought on regularly and regularly decided. Our attention is not called to any statute which provides for notice to the moving party in a case of this kind, and without some statutory provision, we think the general rule plainly would be that the party must take notice that his motion is on file, liable to be called up at any time. Section 822 of the Code of Procedure, it is true, provides that, "when a party to an action has appeared in the same, he shall be entitled to at least three days' notice of any trial, hearing, motion, etc., to be had therein, before any judge at chambers"; but we do not think that this is applicable to the motion for a new trial; and the other provision, viz. Laws 1893, p. 416, § 35, is not applicable to a case of this kind. In Shafer v. Hewitt (Colo. App.) 41 P. 509, it was held that "the party filing a motion for a new trial is not entitled to any notice of the time of hearing of the motion." In discussing that branch of the case, the court said: "The defendants also complain that their motion for a new trial was set for hearing without notice to them or their counsel. It was the defendants who filed the motion for a new trial, and whatever notice of its filing was necessary must have been given by them to the adverse party. The Code provides that such a motion shall be heard at the earliest period practicable after its filing. It is to be supposed that the defendants would have looked after their own motion, and known when it was set for hearing. We have been referred to no law, and we know of none, which entitles them to the notice, the want of which they assign for error." In Lookabaugh v. Cooper, 48 P. 99, it was held that: "In the absence of a showing of irregularity, fraud, unavoidable casualty, or misfortune, the district court has no power to set aside its order overruling a motion for a new trial upon a reconsideration of the same motion already passed upon; and a reversal of such order can be had only by proceedings in error in the supreme court." This is an Oklahoma case, and is founded upon the same reasoning as the case just above referred to. In Crosby v. Mining Co., a Nevada case, reported in 42 Pac., at page 583, it was decided that: "Where a motion for a new trial has been regularly submitted upon a...