Harris v. Speirs

• Decision Date: 15 January 1920
• Docket Number: 3302
• Citation: 186 P. 445,55 Utah 474
• Court: Utah Supreme Court
• Parties: HARRIS v. SPEIRS

186 P. 445

55 Utah 474

HARRIS v. SPEIRS

No. 3302

Supreme Court of Utah

January 15, 1920

Appeal from District Court of Salt Lake County, Third District; H M. Stephens, Judge.

Action by Florence Harris against Ernest Speirs.

Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Olson &amp Lewis, of Salt Lake City, for appellant.

Marioneaux Straup, Stott & Beck, of Salt Lake City, for respondent.

FRICK, J. CORFMAN, C. J., and GIDEON and THURMAN, JJ., and MORGAN, District Judge, concur. WEBER, J., being disqualified, did not participate.

OPINION

FRICK, J.

The facts material to this appeal, in substance, are: The plaintiff commenced this action in the district court of Salt Lake county in December, 1915, praying judgment against the defendant for damages for breach of promise to marry. Defendant answered the complaint by a general denial. The case was tried to a jury, which, on May 3, 1917, returned a verdict in favor of plaintiff for $ 5,000 damages. Judgment was duly entered on the verdict. The defendant, in due time, served notice of motion for a new trial upon the usual statutory grounds, among which was the ground that the damages allowed were excessive. The motion for a new trial was argued and submitted to the court on June 28, 1917. On October 5th following, the court overruled the motion for a new trial upon all grounds except that the damages awarded by the jury were excessive, and upon that ground, and on that date, entered an order "that a new trial be granted, unless the plaintiff within twenty days from date consents to a remission of the verdict in the sum of $ 2,000, thus reducing the verdict to the sum of $ 3,000." On October 20, 1917, plaintiff, through her attorneys, applied for and was given an extension of "fifteen days additional time within which to make an election on motion in the order granting a new trial." Thereafter, on November 10, 1917, counsel for plaintiff, for reasons then stated to the court, obtained an additional fifteen days time "in which to make an election in said case." Thereafter, on November 23, 1917, plaintiff, through her attorneys, served a notice in writing upon defendant's counsel, stating therein that the plaintiff had elected to remit the sum of $ 2,000 from the verdict theretofore returned, and in said notice further notified counsel that plaintiff's attorneys would apply to the court for an order denying the motion for a new trial theretofore filed by the defendant. That application was resisted by defendant's counsel, and on December 1, 1917, the plaintiff was given until December 8th to file affidavits in support of the application aforesaid. Thereafter, on December 6th, and before the expiration of the time within which plaintiff had to file affidavits, her counsel made an additional application for leave to remit $ 2,000 from the verdict, which application was made "in pursuance of section 3005, Comp. Laws Utah 1907, and upon the additional grounds of excusable neglect and inadvertence." The reasons for the application are set forth at great length in the affidavit filed in support thereof. We do not deem it necessary to set forth the facts stated in the application. It is sufficient to state that, in view that the facts were in effect conceded by reason of not having been questioned, they were ample to authorize the district court to grant the relief applied for if it had jurisdiction to act. The district court, however, without passing upon the merits of the application and refusing to consider it, and upon the sole ground that it had exceeded its power in granting an extension of time to plaintiff within which to make her election to remit the $ 2,000 from the verdict and judgment, ruled that the conditional order granting a new trial had by its terms become absolute. Thereafter, upon a further application pursuant to said section 3005, and upon the grounds of inadvertence and excusable neglect, the court, on April 13, 1918, made an order granting plaintiff leave to remit said $ 2,000 from the verdict and judgment theretofore returned and entered in this case, and ordered that judgment be entered against the defendant for the sum of $ 3,000 and costs. Defendant prosecutes this appeal from that judgment.

The only errors assigned are: (1) That the court erred in granting plaintiff additional time on October 20, 1917, within which to make her election to remit $ 2,000 from the verdict; (2) that the court erred in granting plaintiff additional time on November 10, 1917, for the purposes aforesaid; (3) that the court erred in permitting plaintiff to remit $ 2,000; and (4) that the court erred in entering judgment in favor of plaintiff and against the defendant for the sum of $ 3,000.

In support of the first assignment it is insisted that the district court exhausted its jurisdiction and power when it made the first order, granting plaintiff twenty days within which to remit $ 2,000 from the verdict. It is contended that when plaintiff omitted or failed to remit within the twenty days fixed by the court the conditional order of the court, granting a new trial unless the remission were made, became absolute on the expiration of the twenty days, and the court had no further jurisdiction in the matter except to proceed to try the case again. In support of their contention counsel cite Luke v. Coleman, 38 Utah 383, 113 P. 1023, Ann. Cas. 1913B, 483; Winningham v. Philbrick, 56 Wash. 38, 105 P. 144; Brown v. Cline, 109 Cal. 156, 41 P 862; Holtum v. Greif, 144 Cal. 521, 78 P. 11. In Luke v. Coleman the question involved was this: The district court had denied a motion for a new trial on the 28th day of October. On the 19th day of December following the plaintiff in the case filed a motion, asking the court "to grant a rehearing and reargument of plaintiff's motion for a new trial": (1) Because the court had erred in denying the motion; and (2) because the court had "attached undue weight to the verdict of the jury." What the plaintiff there asked was that the court should hear him again upon the same questions upon which he had already been heard. In other words, all that was asked was that the court review its own former ruling without assigning any cause or reason except that the court had erred. It was accordingly held that the court had exhausted its power in denying the motion for a new trial, and that it did not have the power to review its own rulings upon the sole ground that it had erred in making them. Such is also the effect of the decisions in the cases cited from Washington and California. The only similarity between the cases just referred to and the case at bar is that here, as in those cases, a motion for a new trial was involved. The question presented by appellant's first assignment is therefore manifestly not the same as was the question presented and decided in Luke v. Coleman or in the Washington and California cases. The question raised by appellant's first assignment in this case is whether the district court had the power to extend the time within which plaintiff was required to elect whether she would remit $ 2,000 from the amount awarded her as damages or whether she would submit to a new trial. No one does, or can, contend that the district court did not have the power to make the conditional order and in connection therewith to determine and fix the time within which plaintiff should be required to elect. Nor can anyone successfully dispute the proposition that the time plaintiff should be given to elect was not entirely within the sound legal discretion of the court. It could have fixed any reasonable time limit within which plaintiff should make the election. In view of that fact, why could not the court extend the time limit as originally fixed, on proper application being made for such an extension? In case where a court may fix a time limit within which a party to an action may do an act the determination of which is manifestly within the court's discretion, why has it not the inherent power to extend the time limit as first fixed? We confess our entire inability to perceive any reason why it may not do so. Assuming, however, that the court did not have inherent power to extend the time as fixed in the conditional order, it certainly had the power to do so under Comp. Laws Utah 1917, section 7023, which was in full force and effect when this case was tried and the proceedings therein had. That section, among other things, provides that in "* * * the service or filing of notices other than of appeal, the time allowed by this Code may be extended," etc. Extensions of time by the trial courts when timely application was made have so often been approved by this court that the practice has become elementary. When, therefore, the trial court imposed the duty on plaintiff to elect within twenty days whether she would remit $ 2,000 from the verdict and judgment as entered or suffer a new trial, she was compelled to make her election known, both to the court and to the defendant. The manner of making it known naturally was by the service of a notice to that effect, precisely as was done by plaintiff's attorneys. Why such a notice does not come within the provisions of section 7023 we are unable to perceive. True, the time fixed by the court within which plaintiffs must elect was not a time limit fixed by a statute. If, however, the court...