Kelley v. Clark

• Decision Date: 24 January 1912
• Parties: L. M. KELLEY, Respondent, v. C. K. CLARK, Appellant
• Court: Idaho Supreme Court

121 P. 95

21 Idaho 231

L. M. KELLEY, Respondent, v. C. K. CLARK, Appellant

Supreme Court of Idaho

January 24, 1912

APPEAL-MOTION TO DISMISS-MOTION FOR NEW TRIAL-HEARING-WHAT CONSIDERED-STENOGRAPHER'S TRANSCRIPT-RECORD ON APPEAL.

(Syllabus by the court.)

1. Under the provisions of sec. 4441, as amended by an act of February 25, 1911, Sess. Laws 1911, p. 377, a person intending to move for a new trial must within ten days after the verdict of the jury or after notice of the decision of the court or referee, file with the clerk and serve upon the adverse party "notice of his motion designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits, or the records and files in the action, or the minutes of the court." The notice provided for under the statute is a notice of the motion for a new trial, and such notice must designate the grounds upon which the motion will be made, and the motion for a new trial follows after the notice, and may be oral or in writing, and is not required to be in any particular form, or to state the grounds upon which the same is made.

2. Under the provisions of sec. 4442, as amended by the act of February 25, 1911 (p. 377, Sess. Laws 1911), an application for a new trial shall be heard at the earliest practicable time after the notice of the motion, if the motion is to be heard upon the minutes of the court, or in other cases after the affidavits are filed, and may be brought to a hearing upon motion of either party.

3. At the hearing of a motion for a new trial, reference may be had in all cases to the pleadings and orders of the court on file, and when the motion is made on the minutes, reference may be had to any depositions, documentary evidence and phonographic reports of the testimony on file.

4. Sec 4442 of the act of February 25, 1911, does not require the reporter's notes to be transcribed and certified to before the motion is made, but does provide that upon hearing, the phonographic report or stenographer's notes on file may be used, if the motion is heard upon the minutes of the court.

5. The transcription of the stenographer's notes prepared and settled in accordance with the provisions of sec. 4434, Rev Codes, as amended, is made for the purpose of being used as a part of the record on appeal, and takes the place of the statement and bill of exceptions, prepared under the Revised Codes before such section was amended, but is not required to be made and settled before the motion for a new trial is heard.

6. Under the provisions of sec. 4442, the phonographic report of the testimony on file means the stenographic report of the stenographer, or the stenographer's notes, and not the transcription of the testimony by such stenographer, and upon a hearing upon motion for a new trial, when made upon the minutes of the court, the sufficiency of the evidence and the questions arising during the trial and the matters contained in the reporter's notes may all be referred to, and the court may determine such questions from his recollection of what took place and from his own minutes kept of the proceedings, and by reference to the stenographer's notes, without waiting for a transcript of the proceedings and evidence as transcribed by the stenographer.

7. Under the provisions of sec. 4442, as amended, a motion for a new trial may be brought to a hearing upon motion of either party, and the respondent has the same right to bring the motion for a new trial to a hearing as the appellant, and if the appellant does not ask that the motion be called up or heard until after the stenographer's notes have been transcribed, and after such notes have been transcribed said hearing upon the motion for a new trial is heard, and the respondent makes no objection to the hearing of the motion for a new trial at the time on the ground that there has been an unreasonable delay, the respondent waives any objection to such hearing and cannot complain for the first time in this court on the ground that there was an unreasonable delay on the part of the appellant in bringing such motion to a hearing.

8. The various sections of the statute amended by chapters 117, 118 and 119 of the Laws of 1911 do not require the reporter's transcript to contain the specifications of error of the insufficiency of the evidence to support the verdict, and such specifications are not required to be stated in the transcript on appeal, except as stated in the notice of the motion. Under the provisions of sec. 4443 of the codes as amended, the notice of motion for a new trial is a part of the files and part of the record required to be furnished to this court on appeal and is used upon the hearing, and under the provisions of sec. 4441, as amended, such notice is required to specify the particulars in which the evidence is alleged to be insufficient.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.

An action to quiet title. Motion to dismiss appeal. Motion overruled.

Motion to dismiss the appeal and the motion to strike overruled.

Martin & Martin, B. F. Neal, and Dean Driscoll, for Appellant.

Under all of the prior decisions of this court the record shows due diligence in bringing motion for new trial to hearing. (Leggett v. Evans, 16 Idaho 760, 102 P. 486; Farmers' Co-op. Ditch Co. v. Riverside etc. Co., 16 Idaho 525, 102 P. 481; Smith v. Am. Falls Co., 15 Idaho 89, 95 P. 1059; McCrea v. McGrew, 9 Idaho 382, 75 P 67.)

Even though this court should find that appellant should have had his motion for new trial passed upon before the settlement of transcript, the failure so to do is waived by the acquiescence of respondent. (Stufflebeam v. Montgomery, 3 Idaho 20, 26 P. 125; Lockhart v. Rollins, 2 Idaho 540 (503), 21 P. 413, 16 Morr. Min. Rep. 16; Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Richardson v. Bohney, 18 Idaho 328, 109 P. 727; Leggett v. Evans, 16 Idaho 760, 102 P. 486.)

Laches in failing to bring motion for new trial to hearing promptly under a statute similar to subd. 2 of sec. 4441 as amended by act of 1911 is waived if not objected to in the lower court. (Cereghino v. Cereghino, 4 Utah 100, 6 P. 523; Fletcher v. Nelson, 6 N.D. 94, 69 N.W. 53; Anderson v. Bank, 5 N.D. 80, 64 N.W. 117; Plano Mfg. Co. v. Jones, 8 N.D. 315, 79 N.W. 338.)

The subsequent certificate of the trial judge, showing what papers, records, files, etc., were before him and considered by him in passing on appellant's motion for new trial, cures omission of certificate in statement. (Libby v. Spokane etc. Co., 15 Idaho 467, 98 P. 715; Hall v. Jensen, 14 Idaho 165, 93 P. 962.)

If an application be made at the hearing to correct certificate, or to file a new certificate, to make same show the fact, it is in time. (Barrow v. Lewis L. Co., 14 Idaho 698, 95 P. 882; Knutsen v. Phillips, 16 Idaho 267, 101 P. 596.)

A. A. Fraser, and R. R. Wedekind, for Respondent.

Under the old law the motion for a new trial could be made upon the minutes of the court, the same as it can now, and without the preparation of any statement. The California code is the same as our original code. (Malcolmson v. Harris, 90 Cal. 262, 27 P. 206. See, also, State v. District Court, 38 Mont. 119, 99 P. 141.)

The motion to strike from the transcript certain portions thereof should be granted, as the same forms no part of the record on appeal. (Naylor v. Lewiston Ry. Co., 14 Idaho 780, 96 P. 573; Steve v. Bonners Ferry Lumber Co., 13 Idaho 384, 92 P. 363; Humphrey v. Whitney, 17 Idaho 14, 103 P. 389.)

The record must contain the identical papers used on motion for a new trial or the appeal from the order will be dismissed. (Kootenai County v. Hope Lbr. Co., 13 Idaho 268, 89 P. 1054; Steve v. Bonners Ferry Lumber Co., 13 Idaho 384, 92 P. 363.) The statement in this case must be disregarded, as it does not contain any specification of the particulars in which the evidence is alleged to be insufficient to sustain the decision of the court. (Hole v. Van Duser, 11 Idaho 89, 81 P. 109; Later v. Haywood, 14 Idaho 45, 93 P. 374; Humphrey v. Whitney, supra.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This is an action to quiet title to lot 4, block 84 of Boise City, Idaho. The cause was tried to the court and judgment rendered. A motion for a new trial was made and overruled, and this appeal is from the judgment and the order overruling the motion for a new trial. A motion was made in this court to strike from the transcript certain portions thereof and to dismiss the appeal both from the judgment and from the order overruling the motion for a new trial. It is conceded by both parties that the appeal from the judgment must be dismissed, and we will not, therefore, discuss that question, but will consider the real question in the case, whether the appeal from the order overruling the motion for a new trial should be dismissed. The grounds upon which the motion to dismiss the appeal from the order is based are as follows: First, because no motion for a new trial was served and filed within ten days after the notice of the decision of the trial court; second, because the motion for a new trial herein was not brought on for hearing within sixty days after entry of judgment in said action; third, because said application for a new trial herein was not made in the manner or method provided by law; fourth, because the statement of the case set forth in the transcript does not specify wherein the evidence is insufficient to support the judgment or decree of the court; fifth, because the record does not contain all the records, proceedings, files or papers used and considered by the trial court upon the hearing of the motion for a new trial.

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