Elder v. Frevert

• Citation: 3 P. 237,18 Nev. 278
• Parties: ELDER v. FREVERT and others.
• Decision Date: 08 March 1884
• Court: Nevada Supreme Court

3 P. 237

18 Nev. 278

ELDER v. FREVERT and others.

Supreme Court of Nevada

March 8, 1884

A failure to file the "statement" within five days after giving notice of intention to move for a new trial nothing being done in the mean time to retain jurisdiction of the matter, operates by the terms of the statute as a waiver of the right to move for a new trial, and no power exists in the district court to reinstate this right.

The findings of fact contemplated by the statute is the written statement of each issuable fact established by the evidence such facts, while they are the basis of the decision, may never be reduced to writing so as to constitute "findings," and where a decision is filed, the time within which notice of intention to move for a new trial must be given, begins to run from that time, and the subsequent filing of findings does not extend the time.

A statement filed too late to be available for a motion for a new trial may, however, be treated as sufficient for a statement on appeal.

The affidavit of service of notice, not made personally, should set forth the probative facts touching the place where the paper was left, so that the ultimate fact, whether such place was conspicuous, may be deduced therefrom by the court.

Appeal from the second judicial district court, Ormsby county.

R. M Clarke, for appellants.

T Coffin, for respondent.

BELKNAP J.

Respondent moves the court to strike out the statement on motion for new trial, upon the ground that it was not filed within the time required by law; and also to dismiss the appeal because there is no proof of service of the notice of motion of appeal. The cause was tried by the court. Notice of motion for new trial was filed and served on the twenty-seventh day of March, and within 10 days after appellant had received written notice of the decision. The statement on motion for new trial should have been filed within five days thereafter, unless the time for filing was enlarged by agreement of the parties, or order of the court or judge. Nothing was done in this behalf until the sixth day,--April 2d,--when the court caused an order to be entered granting appellant "10 days' additional time to prepare and file his statement on motion for new trial and on appeal." The failure of defendants to file their statement within five days after giving notice of intention to move for a new trial, nothing having been done in the mean time to retain jurisdiction of the matter, operated, as a waiver of the right to move for a new trial, and no power existed by the express terms of the statute, in the district court to reinstate this right. Clark v. Strouse, 11 Nev. 78; Hegeler v. Henckell; 27 Cal. 491.

Additional findings were filed on the twentieth of April, and a second notice of intention to move for a new trial given within 10 days thereafter. It is contended that this notice was in time because the decision was not complete until the additional findings were filed. In support of the contention we are referred to the case of Polhemus v. Carpenter, 42 Cal. 375. This case was decided under a statute of the state of California, providing that a party intending to move for a new trial should give notice thereof "within ten days after receiving written notice of the filing of the findings of the commissioner, referee, or court, when written findings are filed by the court, or of the rendering of the decision of the court when no findings are filed; *** and when amendments are filed, to remedy defects in the findings within ten days after receiving written notice of the filing of such amendments." Section 197, Cal. Pr. Act. The statute of the state of Nevada requires the party moving for a new trial to give notice of his intention "within ten days after receiving written notice of the rendering of the decision of the judge." Nevada Pr. Act, § 195; Comp. Laws, § 1258. Unless the "decision" here spoken of is tantamount to the "findings" which the court may be required to make, the contention cannot prevail. The findings of facts contemplated by the statute is the written statement of each issuable fact established by the evidence. From these determined facts the conclusion of law is deduced. The decision is the announcement by the court of its judgment, and although based upon the settled facts of the case, such facts may never be reduced to writing so as to constitute findings within the meaning of that term as used in the civil practice act. It is a matter of frequent occurrence for courts to announce judgment, and afterwards to prepare findings. The decision may be rendered after or before the filing of findings, or, as is frequently the case, no findings may be made. The decision is therefore distinct from the findings, and the time within which notice of intention to move for a new trial must be given begins to run from the announcement of the judgment.

The decision in Polhemus v. Carpenter is inapplicable. Section 195 of the civil practice act of the state of California underwent several amendments at the different sessions of the legislature...