Gill v. Hecht

• Decision Date: 03 February 1896
• Docket Number: 609
• Court: Utah Supreme Court
• Parties: J. D. GILL, RESPONDENT, v. CHARLES HECHT, APPELLANT

43 P. 626

13 Utah 5

J. D. GILL, RESPONDENT, v. CHARLES HECHT, APPELLANT

No. 609

Supreme Court of Utah

February 3, 1896

Appeal from the district court of the Fourth judicial district Territory of Utah. Hon. H. W. Smith, Judge.

Action by J. D. Gill against Charles Hecht on a contract for the exchange of realty. On motion for new trial the failure of the defendant to make formally any assignment or specification of error was called, upon the argument, to the attention of the court, who thereupon disregarded the statement, denied the defendant the privilege of amendment and overruled the motion for a new trial. Defendant appeals.

Appeal dismissed.

Maginnis & Weber, for appellant.

In Loucks v. Edmonson, 18 Cal. 204, the decision in Valentine v. Stewart was affirmed and indorsed, the court saying:

"The amendment to the statement by the addition of the grounds upon which a new trial would be moved was properly allowed."

In Flynn v. Coute, 47 Cal. 527, the district court canceled its certificate to the statement after the appeal to the supreme court had been perfected.

Other cases that throw light upon the question at issue are the following:

Low v McCallan, 64 Cal. 2; Smith v. City of Stockton, 73 Cal. 204; Lucas v. City of Marysville, 44 Cal. 210; Warner v. F. Thomas Works, 38 P. 960.

There are numerous decisions to the effect that a statement must be disregarded in the absence of specifications of error, but we have been unable to find a single instance in which the courts have refused to permit an amendment to the statement by adding specifications of error.

Evans &amp Rogers, E. M. Allison, Jr., and A. G. Horn, for respondent.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

This action was brought by the respondent to recover from the appellant a commission upon an alleged contract between the parties, wherein it is alleged that appellant agreed to pay respondent $ 1,000 in the event that respondent could effect a certain trade and exchange of real estate belonging to the appellant in Colorado, for certain lands in the city of Ogden, Utah. The exchange was perfected, and upon refusal of appellant to pay the commission, this action was brought. The case was tried before a jury, and recovery had for the contract price and interest.

Upon the argument of the motion for a new trial, respondent's counsel objected to the hearing of said motion on the ground that no assignments or specifications of error in law occurring at the trial, and excepted to by the appellant were designated or pointed out in the statement. Thereupon defendant's counsel orally moved the court to permit an amendment to the statement by incorporating therein his specification of errors, which he claimed were inadvertently 0omitted. The court denied the motion, disregarded the statement, and overruled the motion for a new trial. The notice of intention to move for a new trial embraced only the general grounds: First, insufficiency of the evidence to justify the verdict; second, errors at law occurring at the trial, and excepted to by defendant. Subdivision 3, § 3402, Comp. Laws 1888, provides that: "When the notice of motion designates as the ground of the motion, the insufficiency of the evidence to justify the verdict, or other decision, the...