Evans v. Oregon Short Line R. Co.
| Decision Date | 09 June 1915 |
| Docket Number | 3529. |
| Citation | 149 P. 715,51 Mont. 107 |
| Parties | EVANS v. OREGON SHORT LINE R. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Action by John M. Evans, Jr., administrator of Gene Bare, against the Oregon Short Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
E. M Bagley, of Salt Lake City, Utah, and J. L. Wines and T. J Harrington, both of Butte, for appellant.
B. K Wheeler, of Butte, for respondent.
This action was brought under the federal Employers' Liability Act (). The plaintiff is the administrator of the estate of Gene Bare, deceased, and recovery is sought for damages for the death of Bare, caused by a collision of a passenger train of the defendant with two freight cars, which were running wild on the defendant's main line near Kidd Station, in Beaverhead county. The beneficiaries named in the complaint are the father and mother of the deceased, who, it is alleged, were dependent upon him for support. A trial had to a jury resulted in a verdict and judgment for plaintiff for $12,000. Upon consideration of defendant's motion for a new trial, the court made a conditional order, reducing the amount of the verdict to $7,500. Plaintiff complied with the order by filing with the clerk his written consent that the amount of the award might be so reduced and that the judgment be modified accordingly. The defendant has appealed from the judgment as modified, and from an order denying its motion for a new trial.
After the defendant had filed its brief in this court, counsel for plaintiff moved to dismiss the appeals, alleging several reasons why they should not be considered on the merits. Decision of the motion was deferred until final hearing. Now that the hearing has been had and we have reached the conclusion that the judgment must be affirmed on the merits and that the appeal from the order may not be considered, for the reasons to be hereafter stated, it is not necessary to decide the motion. We, therefore, pass it without further notice.
The appeal from the order cannot be considered because the bill of exceptions in support of the motion was served and filed out of time, as appears from a recital of the anterior proceedings. The original judgment was entered on November 18, 1913. The notice of intention was served and filed on November 19th. On November 21st, upon application of counsel for defendant, the court granted an extension of time for the preparation and filing of the bill of exceptions and affidavits for 60 days, in addition to the 10 days allowed by the statute. On January 5, 1914, an additional extension of 30 days was granted. On February 16, 1914, still another extension was granted for 15 days. The bill was served on March 3d and settled and ordered filed on April 6th. Thus it appears that, making allowance for the 10 days granted by the statute after service of the notice of intention, the extensions amounted to 94 days. All of them were allowed by the court without the consent of counsel for plaintiff, and apparently in their absence, "upon good cause shown" by counsel for defendant. No amendments to the bill were proposed by counsel for plaintiff when it was served, nor, apparently, were counsel for plaintiff present at the time of the settlement. The bill was accompanied by an affidavit alleging misconduct during the trial by B. K. Wheeler, one of counsel for plaintiff. This was not incorporated in the bill of exceptions by appropriate reference or otherwise, but a copy is found in the record certified by the clerk.
Our statute prescribes the grounds upon which a motion for a new trial may be made (Rev. Codes, § 6794), and also the course of proceedings to be observed (sections 6795, 6796). These provisions are exclusive. Ogle v. Potter, 24 Mont 501, 62 P. 920; Wright v. Mathews, 28 Mont. 442, 72 P. 820; Canning v. Fried, 48 Mont. 560, 139 P. 448; Kirk v. Smith, 49 Mont. 196, 141 P. 149. To give the court jurisdiction, the notice of intention must be given within the time prescribed by section 6796, and the subsequent proceedings must conform to the requirements of sections 6795 and 6796. If the bill of exceptions upon which the motion is to be based has already been settled as provided in section 6788, nothing further than the giving of the notice is required. When the motion is based upon affidavits they must be served and filed as prescribed by section 6796. When it is made upon the minutes of the court, the only antecedent step required is the giving of the notice. A statement of the case must be prepared after the motion has been disposed of, by the party who desires to appeal. Under section 6796, as well as section 6788, the court may grant extensions of time for the...
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