Felt v. Cook

• Decision Date: 08 December 1906
• Docket Number: 1775
• Citation: 87 P. 1092,31 Utah 299
• Court: Utah Supreme Court
• Parties: FELT v. COOK et al

87 P. 1092

31 Utah 299

FELT v. COOK et al

No. 1775

Supreme Court of Utah

December 8, 1906

APPEAL from District Court, Third District; C. W. Morse, Judge.

Action by George F. Felt, doing business as the George F. Felt Lumber Co., against Alzora Cook and others. From a judgment in favor of defendants, plaintiff appeals.

APPEAL DISMISSED.

N. V Jones for appellant.

A. L Hoppaugh for respondents.

STRAUP J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

A motion is made to dismiss the appeal on the ground that it was not taken in time. Section 3301, Revised Statutes 1898 provides that an appeal may be taken within six months from the entry of judgment or order appealed from. The findings and decree were filed and entered July 11, 1905, and, on the day following, a notice of such filing and entry was served. A motion for a new trial, on the ground of newly discovered evidence, was served and filed February 28, 1906, seven and one-half months after service of notice of entry of judgment. On March 10, 1906, the motion for a new trial was denied. On June 29, 1906, a notice of appeal was served and filed, appealing from the judgment entered July 11, 1905, and from the order made March 10, 1906. The statute provides (section 3294) that the party, intending to move for a new trial, must, within five days after the verdict of the jury, or after notice of the decision of the court or referee, if the action were tried without a jury, serve and file a notice of such intention. The time in which to serve or file a notice of such a motion for a new trial was not enlarged.

Section 3005, provides that when, for any reason satisfactory to the court, or the judge thereof, the party aggrieved has failed to apply for a new trial or other relief sought during the term at which such judgment, order, or proceeding complained of was taken, the court, or judge thereof, in vacation, may grant the relief upon the application made within a reasonable time not exceeding six months after the adjournment of the term. It is claimed by the appellant that his notice of motion was filed pursuant to this section. The record does not disclose that any application was made for leave to file it. It was filed and served by the appellant as matter of course, without leave or showing. The aggrieved party may, under the five days' statute, and within the time therein specified or enlarged, as matter of right, serve and file a notice of motion for a new trial; but he may not do so under section 3005. To invoke the aid and jurisdiction of the court under the latter section it is requisite that an application and showing be made to the court setting forth some grounds why the motion was not made, and the relief sought within the five days' statute.

Furthermore the notice for new trial was filed seven and one-half months after the judgment was taken. The statute provides that the relief may be granted upon application made within a reasonable time not exceeding six months after the adjournment of the term. It is not made to appear...