Luke v. Coleman

• Decision Date: 23 January 1911
• Docket Number: 2109
• Citation: 38 Utah 383,113 P. 1023
• Court: Utah Supreme Court
• Parties: LUKE v. COLEMAN

113 P. 1023

38 Utah 383

LUKE v. COLEMAN

No. 2109

Supreme Court of Utah

January 23, 1911

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by James A. Luke, assignee of Joseph P. Newman, against George Coleman.

From a judgment of the District Court reversing a judgment of the City Court of Salt Lake City, plaintiff appeals.

APPEAL DISMISSED, AND JUDGMENT OF DISTRICT COURT AFFIRMED.

E. A Walton for appellant.

Moyle &amp Van Cott for respondent.

STRAUP J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

A motion is made to dismiss the appeal. We think it should be granted. The action was commenced in the City Court of Salt Lake City to recover a judgment upon a promissory note in the sum of two hundred and fifty dollars, together with interest and attorney's fee, alleged to have been executed by the defendant, Coleman, and made payable to Newman, who, before suit, assigned it to Luke. A judgment Coleman took an appeal to the District Court of plaintiff, and against Coleman, the defendant, in the sum of four hundred and four dollars and costs. From that judgment in that court was rendered in favor of Luke, the Salt Lake County, where, upon a trial de novo before the court and a jury, a verdict was rendered and a judgment entered in favor of the defendant, no cause of action, on the 22d day of September 1908. Under the statute then in force, section 686x17, Comp. Laws 1907, judgments rendered in the district court on appeals from the city court were final and unappealable when the judgment of the district court did not exceed one hundred dollars. In March, 1909, that statute was amended and went into effect in May, 1909, rendering such judgments final and unappealable when the amount in controversy did not exceed one hundred dollars. Sess. Laws 1909, c. 87.

On the 25th of September, 1908, the plaintiff filed in the district court a written notice of motion for a new trial on the grounds: (1) Insufficiency of the evidence to justify the verdict; (2) that the verdict was against law; and (3) errors in law occurring at the trial. The motion was heard and submitted on the 17th day of October, and on the 28th day of that month and was overruled. On the 19th day of December the plaintiff in writing petitioned and moved "the court to grant a rehearing and reargument of plaintiff's motion for a new trial herein on the following grounds: (1) The court erred in refusing and denying said motion; and (2) in determining said motion for a new trial the court attached undue weight to the verdict of the jury, and failed to sufficiently appreciate the extent of the court's discretion and function with respect to the weight of the evidence." The defendant, on the 21st day of December, filed a motion to strike plaintiff's petition for want of jurisdiction to entertain it. The motion to strike was denied, and on the 26th day of December the petition was submitted, which, on the 3d day of June, 1909, was also denied. At that time final judgments rendered by the district court on appeals from the city court were appealable when the amount in controversy exceeded one hundred dollars. On the 4th day of November, 1909, the plaintiff took an appeal from the judgment rendered in the district court. He claims that the judgment was appealable and became final on the 3d day of June, 1909, when the petition for rehearing was denied. The motion to dismiss the appeal is on the ground that the appeal was not taken within time.

We will assume when the appeal was taken the judgment was appealable. The general statute permits an appeal from final judgments of the District Court to the Supreme Court within six months from the entry of the judgment. It has been held a number of times in this jurisdiction that a judgment is not final while a motion for a new trial made within the time allowed by law is pending and undisposed of, and that an appeal may be taken within six months after the overruling of such a motion for a new trial. Here the judgment was rendered and entered on the 22d day of September, 1908. A motion for a new trial was made on the 25th and overruled on the 28th day of October, 1908. If the judgment then became final, it is clear that the appeal, not taken until the 4th day of November, 1909, more than a year thereafter, was not within time. But the plaintiff urges that the finality of the judgment was suspended by the subsequent filing of his motion or petition for a rehearing and until the overruling of it on the 3d day of June, 1909. We think the district court had not the power to entertain such a motion. It is unknown to our practice. In California, where the practice relating to new trials is similar to ours, it has been firmly established that the court has no power to reopen the question of granting or denying a motion for a new trial after disposing of it. ( Holtum v. Greif, 144 Cal. 521, 78 P. 11; Carpenter v. Superior Ct., 75 Cal. 596, 19 P. 174; Egan v. Egan, 90 Cal. 15, 27 P. 22; Lang v. Superior Ct., 71 Cal. 491, 12 P. 306, 416, 12 P. 416; Coombs v. Hibberd, 43 Cal. 452.)

In the first case the court said:

"The question, then, is as to the power of the trial court to vacate an order granting or denying a new trial after it has once been regularly made and entered. The decisions of this court are numerous and uniform to the effect that a judgment or order once regularly entered can be reviewed and set aside only in the modes prescribed by statute. If they have been entered prematurely, or by inadvertence, they may be set aside on the proper showing (Odd Fellows' Sav. Bank v. Deuprey, 66 Cal. 168 , and cases cited), and, if the order as entered is not the order as made, the minutes may be corrected so as to make them speak the truth (Garoutte v. Haley, 104 Cal. 497 , and cases cited); but subject to these exceptions the order is reviewable only on appeal, and, the decision of the trial court having been once made after regular submission of the motion, its power is exhausted -- it is functus officio."

In the second case it was said: "The foundation of this rule is that the modes in which a decision may be reviewed are prescribed by statute, and the courts are not at liberty to substitute other modes in their place." The same rule also prevails in Nevada (Crosby v. North Bonanza M Co., 23 Nev. 70, 42 P. 583; in Washington, Coyle v. Seattle Electric Co., 31...