Froman v. Patterson

• Citation: 24 P. 692,10 Mont. 107
• Parties: FROMAN v. PATTERSON.
• Decision Date: 01 August 1890
• Court: Montana Supreme Court

24 P. 692

10 Mont. 107

FROMAN v. PATTERSON.

Supreme Court of Montana

August 1, 1890

Appeal from district court, Beaverhead county; WILLIAM H. HUNT Judge.

Forbis & Forbis, for appellant.

Word & Smith, for respondent.

HARWOOD J.

The appeal herein is from an order of the trial court granting a motion for new trial on the application of plaintiff. The first objection urged by appellant is that the statement of the case is insufficient, and for that reason the court was not authorized to vacate the former decision and grant a new trial. The record shows that upon the trial of the cause the plaintiff introduced on his behalf the evidence on which he relied to maintain his case, and all the evidence he offered was received without objection or exception, so far as the record discloses. When the plaintiff rested in the introduction of his proofs, the defendant introduced certain witnesses, who were sworn and testified on behalf of the defendant, and, so far as the record discloses, no objection was made during the trial to the introduction of any evidence offered and received on behalf of defendant. Indeed it does not appear from the record that any objection was made or any exception saved to any matter occurring throughout all the proceedings in the action. This cause was tried to the court without a jury. No findings of fact were made by the court in writing, nor does the record show that any findings in writing were requested by either party. The record shows that after all the testimony was introduced by the respective parties, and "after hearing arguments of counsel for plaintiff and defendant," the court rendered judgment in favor of defendant. On the same day that judgment was rendered the plaintiff, by his counsel, made and served on defendant's counsel a notice of plaintiff's intention to move for new trial, as follows: "To the defendant, William C Patterson, and to John F. Forbis: You will take notice that the plaintiff in the above cause hereby gives notice of his intention to move for a new trial herein; that said motion will be based upon a statement of the case to be prepared and filed herein, and for the reason that the judgment is contrary to law." The record further shows that afterwards, on the 28th of February, 1890, a paper denominated "Motion for New Trial" in said action was served on defendant's counsel, which paper, after setting out the court and title of the action, recites as follows: "Comes now the plaintiff in the above cause and moves the court for a new trial herein for the following reasons: (1) Because the court erred in allowing defendant to introduce proof of his occupancy of the land in controversy named in the complaint. (2) Because the court erred in holding that the receipt of the register and receiver of the United States land-office at Helena would not support an action in ejectment. (3) Because the court erred in rendering judgment for defendant, and dismissing plaintiff's action. (4) Because upon the proof introduced the court should have rendered judgment for plaintiff." The record further shows that an imperfect statement of the case was prepared and served March 1, 1890, on defendant's counsel, containing "all the evidence introduced in the cause;" but this statement does not contain any "specifications of particulars in which the evidence is alleged to be insufficient to sustain the verdict or other decision." Nor does the statement contain any specifications of "errors in law occurring at the trial, and excepted to by the moving party." The only "errors in law" complained of by the moving party which we find specified in the record are the grounds stated in said motion for new trial; but the "errors" there designated were not "errors in law occurring at the trial, and excepted to by the party making the application." According to the record there were no objections made or exceptions saved throughout the trial. It is asserted by respondent's counsel that said "motion for new trial" was attached to the statement of the case when the statement was served, March 1, 1890, and appellant's counsel tacitly admits that fact by saying, as he did in the argument of this appeal, that "the court may take the statement of respondent's counsel as to these facts, and appellant will then stand upon his objection to the sufficiency of the record." Under these agreements we allow said motion for new trial to take its place in the record in lieu of specifications so far as its matter will answer, without however expressing any opinion as to what should be done if objection was made to considering that paper as answering for such an important part of the statement as the specifications of errors under the requirements of the statute.

Admitting for the purposes of this consideration, that said "motion for new trial" is part of the statement of the case, and stands in place of specifications of errors, the appellant still contends that the statement is insufficient to raise the questions sought to be brought before the court, and insufficient to authorize the court to vacate the former decision, and grant a new trial. Section 295, Code Civil Proc., provides: "A new trial is a re-examination of an issue of fact in the same court *** after a trial and decision by a jury, court, or referee." Section 296 of the Code provides: "The former verdict or other decision may be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following *** causes materially affecting the substantial rights of said party." The causes provided here for vacating "the former verdict or other decision" are stated under seven subdivisions of the last-mentioned section. The causes stated in the first five subdivisions have no application to the case at bar. The sixth and seventh subdivisions appear from the argument of counsel for plaintiff to becauses for which plaintiff seeks a new trial. These causes are declared by statute as follows: Sixth. Insufficiency of evidence to justify the verdict or other decision, or that it is against law. Seventh. Errors in law occurring at the trial and excepted to by the party making the application." Section 297 of the Code provides as follows: "When the...