Cereghino v. Cereghino

• Decision Date: 20 April 1885
• Court: Utah Supreme Court
• Parties: GIOVANNA CEREGHINO, APPELLANT, v. ANTONIO CEREGHINO, RESPONDENT

6 P. 523

4 Utah 100

GIOVANNA CEREGHINO, APPELLANT, v. ANTONIO CEREGHINO, RESPONDENT

Supreme Court of Utah

April 20, 1885

APPEALS from two orders of the district court of the third district, granting new trials in two cases between the same parties. The appeals were heard together by stipulation: the opinion states the facts.

Action of the court allowing the respondent's motion for new trial affirmed, with costs.

Messrs Dickson & Varian (Messrs. Woods & Hoffman were with them on the brief) for appellant.

The court had no jurisdiction to grant the new trials.

No notice was given, and no statement was filed within the statutory time, nor within the time enlarged. Nothing appearing to continue the jurisdiction over the case, it was absolutely gone at the expiration of the term: Bear River Co. v. Boles et als., 24 Cal. 358; Flatean v Lubeck, 24 Cal. 364; Kellip v. Empire Mill Co., 2 Nev. 34; State v. Nat. Bank, 4 Nev. 359; Street v. M. & M'g Co., 9 Nev. 253; Clark v Strauss, 11 Nev. 79; Daniels v. Daniels, 12 Nev. 120; Wall v. Preston, 25 Cal. 62.

The action of the court amounted simply to a vacation of its judgment. This it had no right to do after the term: Freeman Judgments, § 96.

No act or waiver could reinvest the court with a jurisdiction over the subject matter which had gone forever: Munch v. Williamson, 24 Cal. 167; Easterby v. Laico, 24 Cal. 179.

Respondent had waived his right before statement filed: Campbell v. Jones, 41 Cal. 578.

The statement does not purport to contain all the evidence. In California the later doctrine of the court is that on appeal the presumption that it does contain all the evidence will be indulged, overruling the earlier cases. In Nevada the rule is the other way, and we submit that upon principle the Nevada rule is the better one: State v. Bond, 2 Nev. 265; Howard v. Winters, 3 Nev. 539; Sherwood v. Sissa, 5 Nev. 349; State v. Parsons, 7 Nev. 58; Sibby v. Dalton, 9 Nev. 23.

Mr. Arthur Brown, for respondent.

BOREMAN, J. ZANE, C. J., concurred. EMERSON, J., concurred in the result.

OPINION

BOREMAN, J.:

On the twenty-second of May, 1880, appellant brought suit against respondent for divorce, in the third district court. Answer having been duly filed, a decree, after hearing, was on the twentieth of May, 1882, entered, granting divorce as prayed.

On the twenty-fifth of August, 1880, appellant brought suit in the same court against respondent for partition also. Answer was duly filed therein, and on the 5th of June, 1882, after hearing, a decree was entered therein directing the sale of the property and a division of the proceeds thereof between appellant and respondent.

On the eleventh of October, 1884, the motion of the respondent theretofore submitted, in each of said causes for new trial, was allowed, and appellant thereupon brought the causes to this court. By stipulation the causes were heard together and one statement made for use in both.

It is objected that no notice of intention on the part of respondent to move for a new trial in the court below was ever filed or served, and in support of this objection the appellant asks leave of this court to introduce a certificate of the clerk of the court below "that no notice of motion of new trial nor order continuing jurisdiction over the cause from April term A. D. 1882, is of record;" also "the stipulations between the parties to the action, extending time to file statement on new trial or appeal, of date June 5 and 30, A. D. 1882;" also the order adjourning court on July 22, 1882, and the minute entry of the submission of the motion for new trial, of date October 6, 1884.

If the leave to introduce these matters were proper now, and it should be granted, we do not think it would avail the appellant anything. The first step to be taken where a new trial is desired, is to give the notice of intention to move therefor. The making and settlement of the statement follows. The record shows that appellant appeared and offered amendments to the proposed statement presented by respondent, that the amendments were allowed and the statement then agreed to and signed by attorneys of both appellant and respondent. The inference is that she (the appellant) had had notice of the motion which the statement was made to support; otherwise she would not have united in settlement of the statement. The statute contemplates the giving of a written notice of the decision, but appellant gave none. She claims that respondent acted as if such notice had been given, and she therefore assumed that respondent had waived it. With equal reason it is proper to presume from appellant's action in agreeing to the statement, that the notice of intention had been waived or that it had been given. Had nothing of the kind been done, the appellant should have made the objection in the court below, either upon settlement of the statement or upon hearing of the motion. Nothing of the kind appears to have been done. A similar rule would apply to the objection that the statement was not filed within time.

It is also objected that the statement does not purport to contain all the evidence. It is not necessary that it should. Under our practice the presumption is that the statement contains...