Gregg v. Garrett

• Decision Date: 19 December 1892
• Citation: 31 P. 721,13 Mont. 10
• Parties: GREGG v. GARRETT.
• Court: Montana Supreme Court

31 P. 721

13 Mont. 10

GREGG v. GARRETT.

Supreme Court of Montana

December 19, 1892

Appeal from district court, Cascade county; CHARLES H. BENTON Judge.

Replevin by J. O. Gregg against Charles Garrett. Judgment for defendant. Plaintiff appeals. Affirmed.

Ed. L Bishop, for appellant.

Leslie & Downing, for respondent.

HARWOOD J.

This is an action of claim and delivery of personal property. Through the process therein, plaintiff recovered possession of a certain quantity of hay. Each party claimed to be the owner thereof. The trial resulted in a verdict by the jury in favor of defendant, for the return of the hay to him, or the payment of $100, the value thereof, to defendant by plaintiff, and judgment was entered accordingly.

Plaintiff prepared and served a notice of intention to move for new trial, wholly omitting to state therein, as required by statute, whether the motion would "be made upon affidavits, or the minutes of the court or a bill of exceptions, or a statement of the case." Section 298 Code Civil Proc. It appears from the record that plaintiff prepared what purports to be a statement of the case as the basis for the presentation of his intended motion for new trial, and served the same on defendant's counsel. It does not appear that defendant or his counsel offered any amendment to said statement, or even acknowledged service thereof, or stipulated that the same was correct, or otherwise took any part in preparing or settling said statement. The judge of the court certified and allowed said statement of the case, and entered an order overruling the motion for new trial. Plaintiff appealed from that order, and from the judgment. Respondent now moves this court to dismiss the appeal from the order overruling plaintiff's motion for new trial, on the ground that plaintiff failed to comply with the statute in giving notice of intention to move for new trial, in that he failed to state therein on what moving papers he would present said motion. This motion must be sustained. The statute provides as follows: "The party intending to move for a new trial must, within ten days after the verdict of the jury, if the action was tried by a jury or after notice of the decision of the court or referee, if the action was tried without a jury, file with the clerk, and serve upon the adverse party, a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits, or the minutes of the court, or a bill of exceptions, or a statement of the case." Section 298, Code Civil Proc. The notice is incomplete and defective, in not setting forth, as required by statute, the basis upon which plaintiff proposed to present the motion for new trial. The reason and importance of this requirement are apparent. Both parties have a right to know upon what papers the motion will be presented, and to participate in preparing the record, if the same has not already been made up by way of bills of exception. The defect in the notice of intention in this case is held to be ground for dismissal, unless the adverse party has waived the same by stipulation, or by co-operation in the formation of the papers upon which the motion is to be made, by amendment, or by some other act which constitutes a waiver. Hayne, New Trials & App. §§ 12, 14, and cases cited; White v. Superior Court, 72 Cal. 475, 14 P. 87; Mining Co. v. Boles, 24 Cal. 354; Fabian v. Callahan, 56 Cal. 160. In the case of Loan Soc. v. Moore, 68 Cal. 158, 8 P. 824, cited by appellant, the opinion shows that "the motion was made upon a prepared statement, to which amendments were proposed;" and this was considered a waiver of the defects in the notice of motion, unless in proposing such amendment the "objection was taken, or right reserved to object thereafter, to any irregularity in the proceedings leading up to or in connection with the settled statement." Also, in Flateau v. Lubeck, 24 Cal. 364, it appears that "a statement, which the parties agreed to as correct, was filed," and notwithstanding this it was held that the want of a proper notice of intention to move for new trial was such an irregularity as made the proceeding void. It is not here affirmed that we would follow that ruling. Reference to it is made to show what has been the holding under various conditions in which the question has been presented. In Christy v. WaterWorks, 68 Cal. 73, 8 P. 849, "the motion was heard and decided upon a statement of the case, proposed, amended, and certified." In view of such co-operation by the adverse party in preparing the statement and submitting the motion, without reserving any objection as "to any irregularity in the proceedings on the motion," the court held that such objection was waived. We find nothing in the record which has been held in the authorities cited by appellant as a waiver of the irregularities in the notice of motion upon which this proceeding was had.

Appellant's counsel insists that the appearance by counsel for respondent when the motion was heard amounts to a waiver of the defects apparent in the notice. The record in this case can only be construed to show that respondent's counsel appeared when the motion was submitted to the court. We think it would be going too...