Kendall v. O'Neal

• Decision Date: 17 June 1895
• Citation: 40 P. 599,16 Mont. 303
• Parties: KENDALL v. O'NEAL.
• Court: Montana Supreme Court

40 P. 599

16 Mont. 303

KENDALL v. O'NEAL.

Supreme Court of Montana

June 17, 1895

Appeal from district court, Choteau county; Dudley Du Bose, Judge.

Action by Amelia R. Kendall against B. F. O'Neal for the conversion of hay. There was a verdict for plaintiff, and from an order granting defendant a new trial plaintiff appeals. Affirmed.

Howard S. Greene, for appellant.

Walsh & Newman and Donnelly & Knox, for respondent.

PEMBERTON C.J.

This is an action to recover damages of the defendant for the value of certain hay, which it is alleged he wrongfully took from plaintiff, and converted to his own use. Plaintiff was the wife of Charles O. Kendall at the time of commencing this suit. The defendant was the sheriff of Choteau county, and took the hay, as such sheriff, under an attachment issued in a suit against Charles O. Kendall to recover a debt due by said Charles O. Kendall. The plaintiff claimed the hay as her separate property. The case was tried to a jury, who returned a verdict for the plaintiff. Defendant moved the court for a new trial, which was granted. From the order of the court granting a new trial this appeal is prosecuted.

The appellant contends that the statement on motion for new trial was not served and filed within the time required by law. The verdict was rendered on the 16th day of May, 1893. Notice of motion for new trial was served on the 25th day of May. On the 17th day of May the court, on motion of defendant's counsel, granted a stay of execution for 30 days. This order did not state the object or purpose thereof. On the 2d day of October thereafter the court amended this order on the minutes so as to read as follows: "In this cause, on motion of defendant's counsel, the court grants a stay of execution for a period of thirty days in which to prepare and file statement on motion for a new trial herein." And on the same day the court granted a new trial. The statement on motion for a new trial was served on the 1st day of July 1893. The appellant contends that the court had no jurisdiction to grant the second extension. The order of October 2d simply corrected the order of May 17th so as to show what the court meant to do, and did in fact do, by granting the first order. Affidavits were filed to show what were the terms and object of this order, and to show that the clerk omitted to state in the order that the stay of execution was granted for 30 days, to enable defendant to prepare statement on motion for new trial. We think the court had full power to make the record state and conform to the truth, and to correct an error or omission of the clerk, when the mistake clearly appeared. This is evidently what the court did by its order of October 2d. See Territory v Clayton, 8 Mont. 1, 19 P. 293. The law gave the defendant 10 days after the service of notice of intention to move for a new trial to prepare and serve statement. This 10 days, and the 30-days extension which the court may grant without the consent of the adverse party, extended the time for filing statement on motion for new trial beyond the 1st day of July, the date on which it was served and filed. We think the statement was served and filed...