Morris v. Lemp

• Decision Date: 01 February 1907
• Citation: 13 Idaho 116,88 P. 761
• Parties: JOHN MORRIS, Respondent, v. JOHN LEMP, Appellant
• Court: Idaho Supreme Court

88 P. 761

13 Idaho 116

JOHN MORRIS, Respondent, v. JOHN LEMP, Appellant

Supreme Court of Idaho

February 1, 1907

EXTENSIONS OF TIME FOR PREPARING STATEMENTS AND AFFIDAVITS ON MOTION FOR NEW TRIAL-ORDER OF REFERENCE-ISSUES COVERED BY REPORT OF REFEREE-ERROR IN EXCLUSION OF EVIDENCE.

1. Where a judge of one judicial district is called into another district for the purpose of trying some particular or specific case, such judge, for the purposes of that case, has all the power and authority of the "court" within and for such judicial district or the "judge" thereof, and may make any and all orders proper or necessary in granting extensions of time for preparing and presenting statements and bills of exceptions or filing affidavits on motion for a new trial.

2. Where the court has appointed a referee for the purpose of taking testimony and "making findings of fact as to the book account of defendant, and reporting the same to the court," and after the referee's report and upon the trial of the case defendant offers to prove credits to which he is entitled that were not contained in the books submitted to the referee and not reported upon it is error, for the court to reject such evidence.

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APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Frank J. Smith, Judge of the Seventh Judicial District, presiding.

Action by plaintiff to collect balance on account. Judgment in favor of the plaintiff and defendant moved for a new trial. Motion denied and defendant appealed from the judgment and order denying his motion. Judgment modified.

Cause remanded, with direction.

Morrison & Pence, for Appellant.

Whatever defects may be in the notice of intention to move for a new trial, they are cured by the recognition of the statement by suggestions as to what it shall contain, or by an acquiescence in its contents. In Montana, the only western state requiring the notice of intention to accompany the record on appeal, it is held that this requirement is waived by the adverse party offering an amendment to the statement proposed without objecting to the want of such notice. (Harrington v. Lynch, 21 Mont. 36, 52 P. 642.)

It is a fundamental principle of law that what does not prejudice the adverse party shall be disregarded. Error must be harmful and prejudicial. Immaterial, harmless error is no ground for reversal of a cause. (Winkley v. Foye, 33 N.H. 171, 66 Am. Dec. 715.)

The court must disregard errors or defects which do not affect the substantial rights of the parties. (Rev. Stats., sec. 4231; Normoyle v. Latah Co., 5 Idaho 19, 46 P. 831; White v. Johnson, 10 Idaho 438, 79 P. 455.)

"While the appellant may select any one ground given by the statute and rely upon it alone, he certainly is not precluded from relying upon two or more, or all of them if, in his judgment, the necessity of his case requires it. And if he sees fit to rely upon one ground and abandon the others, when he comes to file his motion for a new trial, he can then elect to do so. To notify the respondent that he intends to rely upon all of them cannot prejudice his rights in any manner that we can see." (Spelling on New Trial and Appellate Practice, secs. 369, 461; Hart v. Kimball, 72 Cal. 283, 13 P. 852; Duncan v. Times-Mirror, 120 Cal. 402, 52 P. 652; Hall v. Harris, 1 S. Dak. 279, 36 Am. St. Rep. 730, 46 N.W. 931.)

The objection that the wrong judge signed the various papers is not tenable under our statutes. They direct that the statement shall be "presented to the judge who tried or heard the case," and declare that "the motion for a new trial may be brought to a hearing before the judge who tried or heard the case at chambers, or in open court in any county of the state." (Rev. Stats., 4441, 4445.)

The language of the statute is clearly to the effect that the judge who tried the cause may retain and exercise jurisdiction up to and through the hearing of the motion for a new trial. This is comprehensive of any order affecting the said motion. Jurisdiction once acquired continues, and jurisdiction attaching, the judge is clothed with power to make his orders effective. (Rev. Stats., sec. 3925; In re Miller, 4 Idaho 711, 43 P. 870.) If the orders were improperly made by the judge, the correct procedure to cure the evil was by writ of prohibition, not by motion.

Even though the positive instruction of the order referring the case to the referee had been to determine all accounts, yet since the case was still open and on trial, the defendant had a right, on the showing made, to make the proof of this $ 95 payment. The defendant alleges certain payment in cash, and until he rested his case he had a right to make proof of that payment. No possible injury could follow to the other side.

Payment of the $ 95 was embraced in the oral testimony of the direct payment of the money by the man who actually paid it, and whose testimony to that fact was not dependent upon any book of account. Under any theory of book accounts or any construction of the order of reference, rejection of this evidence was error. Such was the best possible evidence which, if available, defendant was obligated under the rules of evidence to produce. Counsel and witness expressly stated that the payment was independent of and extraneous to any payment which had been proven before the referee.

Davidson & Stoutemyer, for Respondent.

On account of the failure of the appellant to take the steps required by statute, in perfecting an appeal, within the time and in the manner prescribed by statute, there was no issue properly before the district court on motion for a new trial, and there is none properly before this court on appeal. The part of the notice of intention under consideration is as follows: "Said motion will be made upon affidavits hereinafter to be filed and served upon you; upon the records and files in the action; upon the minutes of the court; upon a bill of exceptions and upon a statement of the case hereinafter to be prepared; or said motion will be made upon any, either or all of said showings."

It is an alternative notice, a disjunctive notice, an uncertain notice and not a positive notice of anything. It does not inform respondent that it will be on affidavits, nor on the minutes of the court, nor that it will be on any other one of the statutory showings; neither does it inform him that it will be on all of said showings nor upon any two or more of them. The absence of such a specification from the notice of intention has been uniformly held to be fatal. (Hughes v. Alsip, 112 Cal. 587, 44 P. 1027; Spelling on New Trial and Appellate Practice, secs. 368, 369, 461; Gamer v. Glenn, 8 Mont. 371, 20 P. 654; Hall v. Harris, 1 S. Dak. 279, 36 Am. St. Rep. 730, 46 N.W. 931; Hill v. Beatty, 61 Cal. 292.)

Disregard of the statutory requirements is not aided by designating the grounds in the statement. (Street v. Lemon M. & M. Co., 9 Nev. 251; State v. Whaley, 16 Mont. 574, 41 P. 852.)

The code provision of Montana is the same as that of California and Idaho. Held, that where the notice omitted to state on what the motion would be made, an appeal from the order overruling the motion would be dismissed unless the defect had been waived by the adverse party. (Gregg v. Garrett, 13 Mont. 10, 31 P. 721.)

The right to hear the motion for a new trial does not necessarily include the right to grant an extension of time, especially when there is an express provision of statute to the contrary. Neither does jurisdiction to try the case in the first instance necessarily include jurisdiction to grant an extension of time for serving a statement. (Rev. Stats., sec. 4441, subd. 3.)

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