Denver & R.G. R. Co. v. Heckman

• Decision Date: 03 May 1909
• Citation: 101 P. 976,45 Colo. 470
• Parties: DENVER & R. G. R. CO. v. HECKMAN.
• Court: Colorado Supreme Court

101 P. 976

45 Colo. 470

DENVER & R. G. R. CO. v. HECKMAN.

Supreme Court of Colorado

May 3, 1909

Appeal from District Court, Chaffee County; M. S. Bailey, Judge.

Action by William Heckman against the Denver & Rio Grande Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Vaile McAllister & Vaile, E. N. Clark, and T. L. Philips, for appellant.

G. K Hartenstein, for appellee.

MUSSER J.

The appellee, who was plaintiff below, brought this action for damages claimed to have been sustained by him on account of changes made by defendant in a ditch owned by the plaintiff. The defendant reconstructed a portion of its railroad in Chaffee county, and in doing so the plaintiff alleged that the defendant crossed the ditch at three different points and changed the location, grade, and course of the ditch in various places. The plaintiff further alleged that these changes retarded the flow of and diminished the water in the ditch, caused it to fill with gravel and sediment more rapidly than before the change, increased the work and expense of keeping the ditch clean and in repair, decreased the ease and facility with which the plaintiff could reach the ditch and clean and repair the same, and that the railroad is a continued and perpetual hinderance and interference with the operation of the ditch and the irrigation of plaintiff's land, all of which caused damage to the plaintiff. The defendant denied that in reconstructing its road it in any respect changed the ditch to the injury of the plaintiff. The verdict was for the plaintiff in the sum of $600, and, from a judgment for this amount, the defendant appeals.

After both parties had rested, and before the instructions were given, the jury, at defendant's request, were permitted to inspect the ditch. One of the grounds for a motion for a new trial was alleged misconduct of plaintiff, by advice of his counsel, in going upon the ground and shutting off the water from the ditch, after the court had instructed the jury to view the same, claiming that thereby the jury was deprived of an element necessary for the determination of the issues in the case. No mention is made in the motion of any affidavit to support this ground. The verdict was returned on July 19th. Defendant was given 20 days within which to file a motion for a new trial. The motion without any affidavit was filed on August 3d. On September 4th, without an order of court further extending the time within which to file the motion or affidavits, and without permission of the court defendant filed an affidavit to support the aforesaid ground for a new trial. Section 218 of our Code of Civil Procedure (Mills' Ann. Code) says that the motion for a new trial and reasons therefor and affidavits in support thereof shall be filed within five days after verdict, but the court may extend the time for good cause. Under this provision of the Code, the affidavit was not filed in time and ought not to have been considered by the trial court, unless the plaintiff in some way, by word or act or failure, waived the time of filing, or consented to its consideration. There is nothing in the record to show that plaintiff knew the affidavit was filed. He was not bound to take notice of what was filed, relative to the motion, after the expiration of the time allowed for filing the same. It is true the motion was not determined by the court until January 17th, but, from aught that appears, it may have been submitted between the date of the expiration of the time allowed for filing the motion, and the date of the filing of the affidavit. Furthermore, the affidavit is only to the...