Mitter v. Black Diamond Coal Co.

• Decision Date: 18 April 1922
• Docket Number: 998
• Citation: 206 P. 152,28 Wyo. 439
• Parties: MITTER v. BLACK DIAMOND COAL CO
• Court: Wyoming Supreme Court

206 P. 152

28 Wyo. 439

MITTER v. BLACK DIAMOND COAL CO

No. 998

Supreme Court of Wyoming

April 18, 1922

On rehearing, see 27 Wyo. 72.

APPEAL from District Court, Sweetwater County, JOHN R. ARNOLD Judge.

On rehearing. Motion to dismiss the appeal formerly granted denied as to the appeal from the so-called order denying a new trial and judgment.

Judgment dismissed.

Louis J. Kabell, and Edwin J. Stason, for appellant.

The appeal is from the decree entered on the merits below and also from the order denying motion for new trial; the order denying motion for new trial is appealable, (5107 C. S.) also reviewable on error. (5109 C. S.) Defendant's motion for new trial was in effect a petition and motion to vacate the default judgment and permit defendant to come in and defend. It followed the statute, (4650 C. S.) It was supported by affidavit. Appeal lies from the judgment on default. (2 R. C L. 45; 3 C. J. 604, and from an order refusing to vacate a judgment by default, 3 C. J. 526; De La Montanya v. De La Montanya, 44 P. 345.) An appeal lies from an order refusing to vacate a default judgment. (Jameson v Co., 77 P. 662; Ricketson v. Tores, 23 Cal. 636; Stevens v. Ross, 1 Cal. 194; Lemon v. Hubbard, 102 P. 554.) The order is appealable within the definition of a final order as set forth in the following decisions of this court. (Barrett v. Barrett, 22 Wyo. 295; Kahn v. Ins. Co., 4 Wyo. 439; Anderson v. Mathews, 8 Wyo. 307; Tutty v. Ryan, 13 Wyo. 141; Mayott v. Knott, 16 Wyo. 113; Porter v. State, 16 Wyo. 136.) No default had been formerly entered prior to the tender of answer and cross petition. Defendants misnaming its motion to set aside the judgment by default is immaterial. Under rules the name or title given a pleading is immaterial, it will be considered what it in fact is. (21 Ency. Proc. 395; Martin v. Bartholomew, 92 P. 682; Kellog v. Coller, 47 Wis. 649.) This was a case in which it was necessary that relief be first asked from the trial court. The order denying defendant's motion was a final order. (Thompson v. Alford, 60 P. 686; Oliver v. Kootenai Co., 90 P. 107; Schumate v. Schumate, 107 P. 42.) The notice of appeal was filed within time and the service thereof complied with. (Sec. 4447 C. S.; Kinney v. Lewis, 2 Utah 512; Modesto Bank v. Owens, 121 Cal. 223.) A judgment may be set aside after the term for irregularities. (McIntire v. French Co., 3 O. St. 345.) Irregularities defined, (Commissioners v. Cambridge, 7 O. Cir. Ct. Rep. 72.) Rendition of judgment by default while demurrer is on file is an irregularity.

Fred W. Johnson, Harry W. Riddle, and John W. Lacey, for respondent.

The motion was for a new trial and so designated throughout the record by appellant. It was made out of time and beyond the first day of the succeeding term. (Sec. 4595 C. S.) There is no bill of exceptions and the motion is not before this Court. (Hardin v. Card, 14 Wyo. 479; Bank v. Anderson, 7 Wyo. 441.) When it is contended that the findings are against the law or the evidence, the exceptions must be reduced to writing and presented for allowance. (4598 C. S. Mitter v. Black Diamond Coal Co., 191 P. 1069.) Hence appellant is in no better position if his motion for new trial be interpreted as a petition under Sec. 6305 C. S. 1910. A judgment will not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which it was rendered. The following additional authorities were cited by counsel for respondent upon oral argument. (Lewis v. Smith, 9 N.Y. 502; Straight v. Harris, 14 Wis. 509; 2 Jones on Mortages, Sec. 1439; Dawson v. Bank, 15 Mich. 489; Foval v. Benton, 48 Ill.App. 638; McComb v. Spangler, 12 P. 347; Dickerson v. Uhl, 39 N.W. 472; Summers v. Bromley, 28 Mich. 125; Dial v. Reynolds, 96 U.S. 340; Gihon v. Belleville Co., 7 N.J. Eq. 531; Smith v. Roberts, 91 N.Y. 470; Emigrant Bank v. Goldman, 75 N.Y. 127; Ritchie v. McMullen, 159 U.S. 235; Johnson v. Kirby, 65 Cal. 482; Bank v. Grosshans, 85 N.W. 542; Voorhees v. Bank, 10 Peters 449; Missouri R. Co. v. Williamson, 49 P. 157; McCague Co. v. Mallin, 23 Wyo. 201.)

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

A rehearing has been had upon both the motion to dismiss the appeal and the merits. Former opinions may be found in 27 Wyo. 72, 191 P. 1069, 193 P. 520, where the parties to whom we shall refer as plaintiff and defendant, are described. The rehearing upon the motion to dismiss was granted for the purpose of deciding whether the so-called motion for a new trial should have been considered as a petition or motion to vacate the judgment under Chapter 305, Wyo. C. S. 1910. That chapter is now Chapter 370, Wyo. C. S. 1920, and in making future references to statutes we shall cite the later compilation only. It is clear, as explained in the former opinions, that if the motion in question was entitled to be considered only as the ordinary motion for a new trial under Section 5870, the appeal should stand dismissed. On the other hand, if it should have been considered as a petition or motion under Chapter 370, the order denying it, unlike an order denying a motion for a new trial, was a final order as defined by Section 6369, and the appeal, if properly taken therefrom, should be entertained. (Hettrick v. Wilson, 12 Ohio St. 136, 80 Am. Dec. 337; Braden v. Hoffman, 46 Ohio St. 639, 22 N.E. 930; Oliver v. Kootenai County, 13 Idaho 281, 90 P. 107; Ayrshire Coal Co. v. Thurman, (Ind.) 73 Ind.App. 578, 127 N.E. 810; Wunrath v. People's F. & C. Co., 98 Neb. 342, 152 N.W. 736.) There are cases holding that an order granting a motion to vacate a judgment for the purpose of permitting a party to prosecute or defend is not a final order from which an appeal may be had, but we have found no case arriving at that conclusion with respect to an order denying such a petition or motion made under statutes similar to Chapter 370. (See Vann v. Union C. L. I. Co., 79 Okla. 17, 191 P. 175.) This court has not had occasion to discuss the right to appeal from orders denying relief under that chapter, but we have entertained cases on error or appeal for the review of such orders, where the right thereto has not been questioned, and are satisfied that such cases are within our appellate jurisdiction.

In deciding whether the so-called motion for a new trial should have been considered a petition or motion to vacate the judgment, we give no great weight to the fact that it was entitled a motion for a new trial, as it is well recognized that the name or title of a pleading or motion may be disregarded if its contents make its purpose so clear that no one is misled. Therefore, we must inquire whether it appeared with sufficient certainty from the motion that the relief asked by the defendant was the vacation of the judgment. It is worthy of note that counsel agree in asserting that there was no purpose to be served by a motion for a new trial, which is a re-examination of an issue of fact. There had been no judicial investigation of an issue of fact, for none had been raised. The defendant had failed to answer within the time fixed by statute, leave to answer at a later time had been denied, and the judgment was by default. In such a case a motion for a new trial is not a proper motion. (Bertagnolli Bros. v. Bertagnolli, 23 Wyo. 228, 148 P. 374; Foley v. Foley, 120 Cal. 33, 52 P. 122, 65 Am. St. Rep. 147; Fisk v. Baker, 47 Ind. 534; Rooker v. Bruce, 171 Ind. 86, 85 N.E. 351.) Further, by Section 5872, a motion for a new trial is required to be filed at the term the verdict, report or decision is rendered. The judgment, which was the decision in this case, was rendered March 2, 1918; the next regular term of court began March 4, and the motion in question was not filed until March 9. Hence, even if a new trial had been the appropriate relief, this motion, as an application therefor, was too late. The motion applied for a vacation of certain proceedings (which included the judgment), and for leave to make a defense to the action by filing answer, calling witnesses, etc. It was verified, and notice of its filing and of the time when it would be heard was served upon the attorney for the plaintiff. In these circumstances we think it clear that the defendant was seeking a vacation of the judgment, and it is but reasonable to hold that its motion might have been considered an application for that relief. It was not so considered by the court below, nor by this court in acting upon the motion to dismiss, and the claim that it was an application under Chapter 370 was made for the first time in this court by the motion for a rehearing. At all times before it was urged and considered as the ordinary motion for a new trial only. It would seem, then, that though the purpose of the motion was to obtain a vacation of the judgment, it is not clear that the trial court and the plaintiff were not misled as to the relief which the defendant sought. We would perhaps be justified in holding that in requesting now that the motion be considered as a motion to vacate, the defendant asks of us something which he did not ask with precision and certainty in the court below, and which he could not therefore have on appeal. It is generally held not error to deny a motion that cannot be allowed substantially in the form in which it is presented. (28 Cyc. 17.) As was said in Van Slyke v. Hyatt, 46 N.Y. 259, 264: "If a party has mistaken the practice, and moved for an order to which he was not entitled, it must, in general, be discretionary with the court, whether to grant other relief * * * or to deny the motion." But, in view of the fact that the defendant was not permitted to answer and defend, and of the stated circumstances from which it was...