Gomer v. Chaffe

• Decision Date: 01 December 1880
• Parties: GOMER v. CHAFFE.
• Court: Colorado Supreme Court

5 Colo. 383

GOMER v. CHAFFE.

Supreme Court of Colorado

December, 1880

Error to County Court of Arapahoe County.

MOTION to strike out bill of exceptions, and to dismiss writ of error.

Mr. J W. HORNER, for plaintiff in error.

Messrs STALLCUP & LUTHE, for defendant in error.

PER CURIAM.

The motion to strike out the bill of exceptions, and to dismiss the writ of error, is based mainly upon the proposition that in contemplation of law, judgment was entered in the case at the April term, 1879, of the court below, and that it had not jurisdiction at the subsequent June term, to entertain and decide the motion for a new trial, nor to make or settle a bill of exceptions. The trial was to the court without a jury, and its findings were announced on the 8th day of April. A notice of a motion for a new trial was then given by counsel for the plaintiff, and afterwards a written motion was filed.

At the June term, counsel for both parties appeared before the judge, and argued the motion; it was denied, and time was asked and given to prepare and tender a bill of exceptions. This was done within the time granted, and the bill of exceptions signed by the judge.

Two propositions are laid down by counsel in support of the present motion. First, that the motion for a new trial was not made within the time prescribed by the statute. Second that upon the making and filing of the findings of the court upon the issues, at the April term, in the absence of an order of court reserving the case for further proceedings the jurisdiction of the court over the case and the parties ceased, the clerical duty of entering up the judgment only remaining; and the term having closed without a decision of the motion for a new trial, in contemplation of law, the judgment was entered at the April term; consequently the motion could not be entertained at the subsequent June term, nor could a bill of exceptions be settled at that term.

The transcript of the record does not show when the motion for new trial was filed. An interlineation in the bill of exceptions states that it was filed April 14th, but it is conceded that this was inserted after the transcript was brought into this court. It must therefore be disregarded.

There is an admission in this motion to dismiss, however, that the motion for a new trial was filed at the April term. Counsel for both parties appeared before the court at the June term and discussed the motion, and it not appearing that an application to strike it from the files was made, or that any objections were interposed as to the time of filing it, the presumption obtains that it was filed in apt time. As said in a former opinion of this court, the proceedings of the lower court must be presumed to have been regular in every respect, unless the contrary appears in the record. Martin v. Force, 3 Col. 199. See also, Battersby v. Abbott, 9 Cal. 565.

It remains to enquire whether a motion of this character, made in due time, pending and undecided at the term at which the findings were made, will have the effect to carry the case over to a subsequent term.

Upon this point, counsel for plaintiff in error cite us to Wade on the Law of Notice, p. 511, Sec. 1202.

This section lays down the rule, that if due notice of the motion is given, and followed up by a proper statement of what the motion will contain, made in due time, the moving for a new trial will continue the jurisdiction beyond the term; but if the notice and motion are not in statutory time, the court loses jurisdiction of the cause at the end of the term.

In view of the presumption which obtains in favor of the regularity of the proceedings of the court below, this authority is favorable to the jurisdiction in the case at bar.

The same rule was adopted...