Mitter v. Black Diamond Coal Co.

• Decision Date: 18 November 1920
• Docket Number: 998,1005
• Parties: MITTER v. BLACK DIAMOND COAL CO. BLACK DIAMOND COAL CO. v. MITTER
• Court: Wyoming Supreme Court

193 P. 520

27 Wyo. 72

MITTER v. BLACK DIAMOND COAL CO.

BLACK DIAMOND COAL CO. v. MITTER

Nos. 998, 1005

Supreme Court of Wyoming

November 18, 1920

27 Wyo. 72 at 78.

Original Opinion of September 1, 1920, Reported at: 27 Wyo. 72.

Rehearing granted.

POTTER Justice. BEARD, C. J., and BLYDENBURGH, J., concur.

OPINION

ON PETITION FOR REHEARING.

POTTER Justice.

The appeal in this case was ordered dismissed at the last term and is again before us upon appellant's petition for rehearing. The case had been argued and submitted upon respondent's motion to dismiss the appeal and upon the merits, and the appeal was ordered dismissed on the ground that the court was without jurisdiction for the reason that the notice of appeal had not been filed and served within ten days after the entry of the judgment appealed from, as required by statute. (191 P. 1069.)

It appeared that as the result of a trial which occurred in July, 1917, in the absence of the defendant who was adjudged or held to be then in default, a judgment was rendered and entered in the cause on March 2, 1918, and that on the same day an order was entered over-ruling a motion of defendant to set aside the default. That a motion for new trial was filed on March 9, 1918; that said motion was over-ruled by an order dated February 11 and filed February 12, 1919, but appearing to have been entered on the journal as an order made in recess or out of term, under the date of February 11, and that the notice of appeal was not filed or served until after the over-ruling of the motion for new trial. The statement in the former opinion that the notice was filed on February 24, 1919 is complained of by the petition for re-hearing, it being contended in that respect that the notice was filed on February 18, and that the notice filed February 24 was merely a copy with proof of service endorsed thereon. Holding that the filing of a motion for new trial does not have the effect of extending the time for appealing from a judgment under the direct appeal statute, we concluded that the notice in this case had been filed and served too late to authorize a review of the judgment. Upon that theory it would be immaterial whether the notice had been filed on the 18th or 24th day of February, 1919, for either date would be too late. But as the question may be material upon a re-hearing of the cause which we think should be granted upon another ground, we refrain from expressing any opinion concerning it at this time.

The principal grounds stated in the petition for re-hearing are: 1. That the court erred in holding that the judgment of March 2, 1918 was the only order appealed from, and failing to hold that the order over-ruling the motion for new trial was also appealed from. 2. That the court erred in holding that defendant's motion for new trial was a motion defined by Sec. 4604, and contemplated by that and other sections of Chapter 300, Compiled Statutes of 1910, and failing to hold said motion to be a petition, motion and application defined by Sections 4653 and 4654, and contemplated by the provisions of Chapter 305, Compiled Statutes.

Section 4604, one of the sections in Chapter 300 of the Compiled Statutes, refers to the ordinary application for a new trial defined by Section 4601, in the same chapter, for a cause or causes enumerated in the last named section, and which is required by Section 4603 to be made at the term the verdict, report or decision is rendered, and, except for the cause of newly discovered evidence, within ten days after the rendition thereof, unless the party is unavoidably prevented from filing the same within such time. Said Section 4604 provides that such an application shall be by motion, upon written grounds. That chapter follows immediately the chapters of the code of civil procedure containing provisions relating to the conduct of the trial and is immediately followed by chapters defining and containing provisions for giving and entering judgment. The new trial thus provided for is defined as a "re-examination of an issue of fact in the same court after a verdict by a jury, a report of a referee or master, or a decision by the court," and briefly stated, the causes enumerated in said Section 4601 are: 1. Irregularity in the proceedings of the court or prevailing party, or any order, or abuse of discretion, preventing the aggrieved party from having a fair trial. 2. Misconduct of the jury or prevailing party. 3. Accident or surprise. 4. Excessive damages. 5. Error in amount of recovery in an action upon contract or detention of property. 6. That the verdict, report or decision is not sustained by sufficient evidence or is contrary to law. 7. Newly discovered material evidence. 8. Error of law occurring and excepted to at the trial.

The motion for new trial in this case stated as grounds therefor several of the causes enumerated in Section 4601, including those mentioned in subdivisions 1, 2, 3, 6, and 8; and in rendering its decision dismissing the appeal this court considered the motion as the ordinary or usual motion filed under Section 4601 and the provisions aforesaid of the same chapter, nothing to the contrary having been suggested in the briefs or argument upon the hearing of the cause. With that understanding of the motion, and holding, in effect, that through delay in filing and serving notice of appeal the right to appeal from the judgment had been lost, it was not deemed necessary to mention the fact in the former opinion that the notice of appeal stated that it was taken also from the order over-ruling the motion for a new trial. It was our opinion, which we supposed would be understood, that under the circumstances an appeal from the order over-ruling the motion could not be maintained.

We remain of that opinion so far as the said motion is to be regarded as the ordinary motion for new trial, and perceive no good reason for granting a re-hearing as to that matter. An order over-ruling a motion filed under the provisions of said sections has never been held or understood by this court to be a final or appealable order, but, for appellate purposes, merely as ground for reversal of the judgment in a cause, when erroneous, if excepted to and assigned as error. And we think it is not a final or appealable order under our statutes, though it may be ground for reversing a judgment. (Young v. Shallenberger, 53 Ohio St. 291, 41 N.E. 518; Con. Col. and W. Tpk. Co. v. Oliver, 16 Ohio Dec. 47; Macartney v. Shipherd, 60 Ore. 133, 117 P. 814; 3 C. J. 505).

Such a motion, which we have referred to as the ordinary motion for new trial, may be filed before judgment, following the return of a verdict, the filing of a report of a referee or master, or the findings of the court, and while the statute provides for entering judgment by the clerk in conformity to a general verdict (Sec. 2622 Comp. Stat.) it affords an opportunity to have the entry delayed to await the result of a motion for new trial, by the provision authorizing the cause to be reserved for further argument or consideration. Under that a party may state his intention to file a motion for a new trial and desire that judgment entry be delayed until the motion may be filed and considered. But it is not necessary for the motion to be filed before judgment. It may be filed after judgment within the statutory time, and if it then be overruled, "the judgment remains, from the date of its entry, the final judgment in the action unless reversed, vacated, or modified in accordance with law." (Young v. Shallenberger, supra). Deciding in that case that the overruling of the motion is not a final order upon which error can be prosecuted, the Ohio Supreme Court said:

"A final order to which error will lie, is defined by the code to be: 'An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment.' Section 6707, Revised Statutes. It is clear that the overruling of the motion of plaintiff in error for a new trial was not an order made in a special proceeding, or upon a summary application after judgment; it was made in a civil action, as contradistinguished from a special proceeding, and, in the ordinary course of procedure in such actions. Nor is it an order in an action which both affects a substantial right and in effect determines the action and prevents judgment, within the meaning of the section of the code alluded to. The action ends with the judgment; and the motion, which is an application to the court to reconsider its judgment, and for a re-trial, is usually, though not always essential to the proper reservation and presentation of the errors preceding the judgment, when relied upon to obtain a reversal of it. Error lies to the judgment, but not to the decision of the motion; though that decision may be made a ground for the reversal of the judgment. * * * And so, if the motion be overruled, the unsuccessful party must incur the expense of a proceeding in error, if he is dissatisfied with the result; but neither the overruling or sustaining of the motion is, within the meaning of the code, such final order as may, itself, be the foundation of a proceeding in error."

Under a similar statute defining a final appealable order the court said in the Oregon case cited, that to deny a new trial does not determine the action so as to prevent a judgment within the terms of the Code, for the judgment has been entered, but is simply the adherence of the court to its former ruling, leaving the rights of the parties determined by the judgment unaffected by the denial of the motion.

Our statutory...