Emerson-Brantingham Implement Co. v. Stringfellow

• Decision Date: 17 December 1920
• Docket Number: 3574
• Citation: 57 Utah 284,194 P. 340
• Court: Utah Supreme Court
• Parties: EMERSON-BRANTINGHAM IMPLEMENT CO. v. STRINGFELLOW, District Judge, et al

194 P. 340

57 Utah 284

EMERSON-BRANTINGHAM IMPLEMENT CO. v. STRINGFELLOW, District Judge, et al

No. 3574

Supreme Court of Utah

December 17, 1920

Action by the Emerson-Brantingham Implement Company against J. W Stringfellow, Judge of the District Court of Salt Lake County, and others, for a writ of prohibition. See, also, 53 Utah 539, 174 P. 181.

See also, 53 Utah 174 P. 181.

ALTERNATIVE WRIT QUASHED, AND PEREMPTORY WRIT DENIED.

D. W Moffat, of Murray, for plaintiff.

W. B. Higgins, of Filmore, and Straup, Nibley & Leatherwood, of Salt Lake City, for defendants.

THURMAN, J. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

Plaintiff has applied to this court for a writ of prohibition to prohibit the defendant Hon. J. W. Stringfellow, as judge of the district court of Salt Lake county, from hearing a certain motion for a new trial, and for other relief. An alternative writ was issued, and defendants appeared and answered.

The material facts are not in dispute. In the month of February, 1920, Hon. Wilson McCarthy, then judge of said court, in a case pending before him between the above-named plaintiff and the defendants Hansen and Giles, orally announced that he would find the issues in favor of the plaintiff. On the 25th of the same month plaintiff's attorney addressed the following communication to the attorneys for the defendants.

"You will herewith please find proposed findings of fact, conclusions of law, and judgment in the case of Emerson-Brantingham Implement Company v. J. H. Giles and E. M. Hansen. The same will be presented to Hon. Wilson McCarthy, judge, on Saturday, March 6, 1920, for approval and signing. You will therefore please take notice of said proposed presentation and kindly acknowledge receipt of copies."

On March 17th, next following, plaintiff's attorney addressed another communication to the defendants' attorneys, as follows:

"You will herewith find inclosed copy of memorandum of costs in the case of Emerson-Brantingham Implement Company, a Corporation, v. Hansen and Giles. A previous cost bill has been served upon you identical with the one herewith served in so far as amount, and this one is served for the reason that it is probable that the other one may have been prematurely filed. For some reason best known to the court the findings of fact, conclusions of law, and judgment were not signed or dated the day for which they were noticed, but were held by the judge for some time. I have just been informed that they were signed on the 12th of March. This information was obtained from the clerk, and we were unable to verify the actual date placed upon the judgment and findings for the reason that Judge McCarthy is in Summit county and the findings and judgment were locked in his desk in his chambers, as I was informed by the clerk. The situation presents an anomalous one, and I trust that our service of this copy of this cost bill in lieu of the previous one, which may have been premature, will be satisfactory. Kindly acknowledge service of the copy."

These communications were received in due course by the defendants' attorneys. On April 2d, following, findings of fact and conclusions of law and judgment were filed with the clerk. The date mark on the findings and conclusions indicates that they were signed by the judge on the 10th day of March, 1920. Nothing further appears to have been done in the case until August 18, 1920, when defendant Hansen, served plaintiff with notice of intention to move for a new trial. The notice was filed with the clerk on the 23d of the same month. On September 1st, next following, plaintiff served and filed notice of motion to strike defendants' motion for a new trial from the files on the grounds that it was not served in time. The motion to strike was heard on the 4th of September and denied on the 10th, the defendant Hon. J. W. Stringfellow as judge presiding.

Plaintiff contends that the district court of Salt Lake county is without jurisdiction to hear the motion for a new trial; that the two notices served by plaintiff on defendants' counsel February 25th and March 17th, above quoted, were sufficient as notice of the court's decision; and that when defendant's failed to take further steps in the case for a period of more than five days after service of the last notice the court was without jurisdiction to hear the motion.

Defendants assail the validity of the notice relied on by the plaintiff on the grounds. (1) That the alleged notice was premature for the reason that the findings of fact and conclusions of law had not been filed, and that therefore no decision had been made; (2) that the alleged notices, in any even, did not inform defendants that the court had decided the case.

1. Comp. Laws Utah 1917, § 6980, as far as material here, reads:

"The party intending to move for a new trial must, within five days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk, and serve upon the adverse party a notice of his intention. * * *"

This statute was taken from the California Code of Civil Procedure.

Hayne, New Trial and Appeal (Revised Edition) § 246, has the following, among other, provisions:

"The mere signing of the findings does not amount to a decision. Accordingly, when the findings were signed in another county from that in which the action was pending and forwarded to the clerk, it was held, that the fact that the signature of the judge was affixed in another county was immaterial, and the court said, 'It was not the signing but the filing of the findings and order for judgment that determined the action.' So it would seem that until the findings which have been signed have been filed the judge may change them in any respect or revoke his signature" (citing California cases).

In 1 Spelling, New Trial, p. 6, the same doctrine is announced as follows:

"But in case of a trial by the court without a jury, until a decision has been entered in the minutes or reduced to writing by the judge and signed by him and filed with the clerk a case has not been tried" (citing California cases).

In volume 2 of the same author (section 606), it is said:

"Signing what purports to be findings does not constitute findings. It requires both reduction of the decision to writing and its filing with the clerk to constitute the decision called for by the statute. * * *"

In Connolly v. Ashworth, 98 Cal. 205, 33 P. 60, in construing sections 632 and 633 of the California Code of Civil Procedure, requiring decisions to be in writing and filed with the clerk, separately stating the findings of fact and conclusions of law, the court said:

"In view of these provisions it is clear that the trial of a cause by the court is not concluded until the decision is filed with the clerk; and when the...