Kimball v. Palmerlee
| Decision Date | 17 July 1882 |
| Citation | 13 N.W. 129,29 Minn. 302 |
| Parties | C. H. Kimball v. A. S. Palmerlee |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Dodge county, Buckham, J., presiding, refusing a new trial. The action was tried April 5, 1881, judgment was entered October 20, 1881, and the motion for a new trial was heard January 16, 1882, on notice given December 21, 1881.
Order affirmed.
B. F Latta, for appellant.
Robert Taylor, for respondent.
The motion for a new trial in this case was not made till after judgment entered. The respondent objects that a motion for a new trial in a case tried by a jury is too late after judgment, and that the motion ought on that ground to have been denied, without regard to the merits. The statute gives the right to make such a motion, but it cannot be supposed that it may be exercised without regard to the time of its exercise, and the statute fixes no limit of time except where it is made on the judge's minutes. Gen. St. 1878 c. 66, §§ 253, 254.
In Groh v. Bassett, 7 Minn. 254, (325,) the court said that, in a case tried by the court without a jury the notice must be given "for the earliest period at which the motion can be heard after notice that the decision has been rendered, and before judgment is perfected." It said that the party must conform as nearly as possible with a provision of statute then, but not now, existing, requiring notice of the motion in open court immediately after the verdict, or other decision rendered.
In Conklin v. Hinds, 16 Minn. 457, the court held (the case having been tried by the court without a jury) that as the statute gives the right to move for a new trial upon the report of the referee or decision of the judge, and allows no opportunity before judgment, the party must necessarily have the right to make it after judgment; and it also held that the trial court might in its discretion allow the motion to be made at any time within the time prescribed for appeal from the judgment.
Schuek v. Hagar, 24 Minn. 339, was a case tried by a jury. A motion for a new trial was made by defendant, and his application for a stay of proceedings until a decision of the motion was refused, and judgment thereupon entered, after which an order denying a new trial was entered. The court said: "We are of opinion that in an action tried by a jury, when, as in the case at bar, a party, notwithstanding he has used due diligence, has been unable to prevent the entry of judgment, * * * he is not deprived by such entry of his right of appeal from an order made after the entry of judgment, denying his motion for a new trial."
In Cochrane v. Halsey, 25 Minn. 52, the court said: ...
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Lund v. Upham
... ... after notice of entry of judgment. Rev. Codes 1905, Sec ... 7346; Bright v. Juhl, 93 N.W. 648; Kimball v ... Palmerlee, 13 N.W. 129; Deering v. Johnson, 22 ... N.W. 174; Yerkes v. McHenry, 6 Dak. 5, 50 N.W. 485; ... Richardson v. Rogers, 35 N.W ... ...
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