Darling v. Fremstadt
| Decision Date | 05 November 1912 |
| Citation | 127 P. 674,22 Idaho 684 |
| Parties | MARGARET DARLING, Respondent, v. JOSEPH FREMSTADT and MABEL FREMSTADT, Appellants |
| Court | Idaho Supreme Court |
APPEAL-MOTION TO DISMISS-NAME OF COURT TO WHICH APPEAL IS TAKEN-JUDGMENT-INTEREST-NEW TRIAL-AFFIDAVITS-COUNTER-AFFIDAVITS-TIME TO FILE-ORDER REFUSING NEW TRIAL.
(Syllabus by the court.)
1. Where an appeal is taken from a judgment rendered in a justice's court to the district court, and the notice of appeal states "an appeal to the district court of Cassia county," and the cause is appealed to the district court of the fourth judicial district in and for Cassia county, such appeal will not be dismissed, where it appears that the respondent upon said appeal is in no way misled or deceived.
2. Where a judgment is rendered in a district court in an action to recover a money judgment, and the judgment provides "that plaintiff have and recover.... interest thereon at the rate of one per cent per month from the date hereof until paid," such judgment will not be reversed on account of excessive interest, but will be modified, and the court will be directed to modify said judgment and decree that said judgment draw interest at the rate of seven per cent.
3. Where it appears that a motion is made for a new trial, and affidavits are made and filed in support of such motion, and opposing counsel serves counter-affidavits, in opposition to the affidavits filed by the moving party, and it appears that such affidavits inadvertently were not filed within the prescribed time, and the trial judge, upon the affidavit of counsel for the party opposing said motion, makes an order directing that said counter-affidavits shall be filed nunc pro tunc as of the date such affidavits were served upon the moving party, the order of the trial court denying a new trial will not be reversed, as such action of the trial court does not affect any substantial right of the appellant.
4. Where on a motion for a new trial affidavits are filed by the moving party in support of such motion, and counter-affidavits are filed by the party opposing such motion, and it appears from such affidavits that the facts stated are in the main cumulative, and that none of them were beyond the reach of the appellants, who by proper diligence could have produced them at the trial, and it appears from such affidavits that they do not show such surprise as would warrant the granting of the new trial, and that the new evidence stated in the affidavits discovered since the trial of the cause does not show that at the trial there had been a miscarriage of justice, or the denial of any legal right of the appellants by the verdict of the jury, the order of the trial court in denying the motion will not be reversed.
APPEAL from the District Court of the Fourth Judicial District for Cassia County. Hon. C. O. Stockslager, Judge.
Action to recover a debt. Judgment for plaintiff. Motion for a new trial made; denied. Affirmed.
Judgment affirmed. Costs awarded to respondent.
T Bailey Lee, for Appellants.
No application was made to the court for an extension of time in which to file counter-affidavits, and the statute being mandatory, and the period therein provided having expired the court was without jurisdiction to either consider said counter-affidavits or order them filed nunc pro tunc, as it did nearly three months thereafter. (Swartz v Davis, 9 Idaho 238, 74 P. 800; Sandstrom v. Smith, 11 Idaho 799, 84 P. 1060; Hoehan v. New York Dry Goods Co., 8 Idaho 66, 67 P. 796.)
J. C. Rogers, for Respondent.
Where it appears, on motion for a new trial, that a party had prepared counter-affidavits and served copies of them within the prescribed time, but inadvertently omitted to file them, he may file them after the expiration of the time prescribed. (Spottswood v. Weir, 80 Cal. 448, 22 P. 289; Smith v. Whittier, 95 Cal. 279, 30 P. 529.)
The defendants fail to show that they exercised any diligence to discover and produce the evidence, and it is apparent that the alleged newly discovered evidence is cumulative. (Stoakes v. Monroe, 36 Cal. 383, 2 Morr. Min. Rep. 246.)
A wide discretion is vested in the trial court in determining the weight to be given to the statements contained in affidavits upon motion for a new trial. (People v. Weber, 149 Cal. 325, 86 P. 671.)
Defendants' affidavits are clearly cumulative. (Bartlett v. Hogden, 3 Cal. 55.)
This action was brought in the justice court of Burley precinct, Cassia county, by respondent against the appellants, to recover for services alleged to have been rendered by respondent as a nurse, at the request and by the employment of appellants. The case was tried to a jury, and a verdict rendered in favor of the defendants. From this judgment the respondent appealed to the district court of the fourth judicial district in and for Cassia county. In the district court a motion was made to dismiss the appeal, for the reason that the notice of appeal was fatally defective, in that it announced an appeal to the district court of Cassia county, a court to the law unknown. This motion was denied by the district court.
In the district court the case was tried before a jury and a verdict was found for respondent for the sum of $ 48.35. A motion for a new trial was made and overruled, and this appeal is from the order overruling the motion.
The first error relied upon is the order of the trial court in overruling the motion to dismiss the appeal. This objection is purely technical and has no merit. The notice of appeal states: "Hereby appeals to the District Court of the County of Cassia." The statement in the notice of appeal that the appeal is taken "to the District Court of the County of Cassia," instead of "to the District Court of the Fourth Judicial District in and for Cassia County," the proper name given to the court to which the appeal was intended to be taken (Const., sec. 11, art. 5; sec. 3829, Rev. Codes), could not have misled or deceived the respondent. It is apparent that the appellants were attempting to, and did in fact, have the case appealed to the district court of the fourth judicial district in and for Cassia county, and that the respondent so understood it, and therefore appeared in that court and the case was tried on its merits, and that it was the same case which was tried in the justice court, from which such appeal was taken. The trial court therefore committed no error in refusing to dismiss the appeal.
The second error assigned relates to the interest allowed on the judgment, upon the amount assessed by the jury. The judgment provides that "plaintiff may have and recover . . . . interest thereon at the rate of one per cent per month from the date hereof until paid." This evidently was an oversight in preparing the judgment, and permits excessive interest, as the statute provides that all judgments shall draw interest at the rate of seven per cent. (Sec. 1537, Rev. Codes.) The statute also provides, sec. 4450: "When trial by jury has been had, judgment must be entered by the clerk, in conformity with the verdict, within twenty-four hours after the rendition of the verdict, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings."
The interest allowed upon the judgment should be seven per cent, and the interest begins to run when the judgment is entered by the clerk in conformity with the verdict. The judgment in this case should be modified accordingly.
Specifications of error Nos. 1, 2 and 3 relate to the counter-affidavits served but not filed, which were read and considered by the trial court upon the hearing of the motion for a new trial, and can all properly be considered together.
The record shows that upon April 14th appellants served upon plaintiff's counsel affidavits in support of the motion for a new trial, and upon April 24th respondent served upon appellants' counsel counter-affidavits, but that such affidavits were not filed within the time prescribed by sec 4441, Rev. Codes, and that no application was made by counsel for respondent for an extension of time within which to file such affidavits. It appears, however, from the record, that the ...
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