Peter v. Kalez

• Decision Date: 18 December 1905
• Parties: PETER v. KALEZ
• Court: Idaho Supreme Court

83 P. 526

11 Idaho 553

PETER v. KALEZ

Supreme Court of Idaho

December 18, 1905

MOTION FOR NEW TRIAL-PREMATURE HEARING AND SUBMISSION-AFFIDAVITS OF NEWLY DISCOVERED EVIDENCE-COUNTER-AFFIDAVITS-TIME FOR FILING AND SERVICE-PROOF OF SERVICE OF NOTICE AND MOTION.

1. Under section 4441 of the Revised Statutes, where a motion for a new trial is to be made on affidavits, the adverse party is entitled to ten days after service on him of the affidavits of the moving party in which to file and serve counter-affidavits and within the period allowed for filing such counter-affidavits, the court has no power or authority to hear and consider a motion for a new trial based on the affidavits of the moving party.

2. By section 4442 the court is prohibited from hearing a motion for a new trial based on affidavits until after the expiration of the ten days allowed the adverse party in which to file counter-affidavits.

3. The adverse party is entitled to notice of the time and place of the hearing on a motion for a new trial and to be present at the hearing and present his side of the case.

4. Sufficiency of proof of service of notice and motion for a new trial considered and discussed.

(Syllabus by the court.)

APPEAL from District Court in and for Kootenai County. Honorable Ralph T. Morgan, Judge.

Suit in equity for a decree canceling a deed. Judgment for defendants and a new trial granted. From the order granting a new trial defendants appeal. Reversed.

Reversed and remanded. Costs awarded to appellants.

Edwin McBee and James Hopkins, for Appellants.

Appellants contend that the court had no jurisdiction to hear the motion for new trial on May 1, 1905. There is no proof in the record that the motion and affidavits had been served on appellant as the affidavit of Fred L. Burgan was not filed until May 15th, two weeks after the motion for new trial was submitted. The principle is elementary. (Vermont Loan etc. Co. v McGregor, 5 Idaho 510, 51 P. 104; Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 P. 1089.) Our statutes, section 4889 of the Revised Statutes, provide in regard to service and how it must be made, as follows: "If upon an attorney, it may be had during his absence from his office by leaving the notice or other papers, etc., with his clerk therein, or with a person having charge thereof." Our supreme court has held that this section must be strictly construed, and an affidavit in proof of such service must state that all the conditions of the statute authorizing such service have been substantially complied with, or it will be disregarded. (Warner v. Teachenor, 2 Idaho 38, 2 P. 717; Doll v. Smith, 32 Cal. 475; 19 Ency. of Pl. & Pr. 947; Dalzell v. Superior Court, 67 Cal. 453, 7 P. 910.) Code of Civil Procedure, section 3526, paragraph 1, provides: "If the motion is made upon affidavits, the moving party must, within ten days after serving the notice, or such further time as the court in which the action is pending, or the judge thereof may allow, file such affidavits with the clerk and serve a copy upon the adverse party, who shall have ten days to file counter-affidavits, a copy of which must be served upon the moving party." The attempted service was made at 11 o'clock A. M. of the day the same was filed. Under our statute, we think the notice must be filed first, and then served. (Clark v. Lowenberg, 1 Idaho 654; Slocum v. Slocum, 1 Idaho 589.) And nothing will be presumed in favor of the legality of the proceedings. (Anderson v. Knott, 1 Idaho 626.) The same question, under a similar statute, has been before the supreme court of Washington, and in each and every case it has been held by said court that the filing must precede the services. (State v. Superior Court of King Co., 17 Wash. 54, 48 P. 733; Boyle v. Great Northern Ry. Co., 13 Wash. 383, 43 P. 344; Erickson v. Erickson, 11 Wash. 76, 39 P. 241.) Section 4441 of the Revised Statutes (Code Civ. Proc., 3526) provides that when a motion for a new trial is made upon affidavits, the opposite party shall have ten days to file counter-affidavits. Therefore, the motion for a new trial could not be lawfully heard before May 5, 1905.

Robertson, Miller & Rosenhaupt, Barnes & Latimer and McClear & Burgan, for Respondent.

It will be conceded as a proposition of law that questions of the character involved in this suit shall be brought to the attention of the trial court before error can be predicated upon them. In support of this contention we cite Spelling's New Trial and Appellate Procedure, sec. 671, and cases there cited; O'Connor v. Hitzler, 20 Colo. App. 385, 80 P. 474; Marean v. Stanley, 21 Colo. 43, 39 P. 1086. This being the law of this state, the appellants should have made application to the court for leave to file counter-affidavits, if necessary, and in such application should have shown the court that the motion had been argued prior to the time which the law allowed them to file their counter-affidavits.

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

The facts all stated in the opinion.

AILSHIE, J.

This is an appeal from an order granting a new trial. The respondent has filed a motion to dismiss the appeal on the ground that service of the transcript on appeal was admitted by the stenographer employed in the office of Robertson Miller & Rosenhaupt, of counsel for respondent residing in Spokane, in the name of the firm in whose office he was employed, and that such stenographer had no authority to admit service or accept copy of transcript in cases on appeal. It appears that on or about the fifteenth day of September, 1905, one of the attorneys for the appellants went to the office of Robertson, Miller & Rosenhaupt in Spokane, and finding no one but the stenographer in the front room of the office, presented to him a copy of the transcript and requested him to admit service for the firm, and that he did so in the name of the firm of attorneys with whom he was employed. It appears by the affidavit of the stenographer that at the time he accepted service one of the attorneys was in an adjoining room. There is no pretense made in this case that the attorneys for the respondent did not receive a copy of the transcript. While technically the stenographer might have had no authority to accept service and sign the names of his employers thereto, still it is admitted that the transcript was actually received by the attorneys, and it is clear that they were in no way deceived, misled or prejudiced by the service in the manner it was made. The motion is denied.

The appellants contend that the order granting a new trial in this case must be reversed upon the grounds that it was prematurely made without notice to the appellants and without giving them the statutory time in which to prepare, serve and file their counter-affidavits to be considered on the hearing of the motion. Notice of intention to move for a new trial was served and filed April 15, 1905. Motion for a new trial accompanied by affidavits of A. E. Barnes, Mike Desartin and James Justice were filed April 24, 1905. The motion for a new trial recites that "the plaintiff in the above-entitled cause will on the first day of May, 1905, at the hour of 2 o'clock P. M., of said date, or as soon thereafter as counsel can be heard, at the courtroom at Rathdrum, in the county of Kootenai, state of Idaho move the court to vacate the judgment or decision of the court found in this cause, etc." It is claimed that this motion and notice was served on the attorney for the defendants on the twenty-fourth day of April, 1905. Counsel for appellants, however, claim that there is no proof of service of the notice and motion, and that the attempted proof is totally defective and insufficient under the statute. The proof of service as found in the transcript is as follows: "Fred L. Burgan, being first duly sworn, deposes and says that he is one of the attorneys for the plaintiff in the above-entitled action; that he served a true copy of the motion for a new trial in the above-entitled action, and a copy of all of the affidavits used by plaintiff in support of said motion on Edwin McBee, one of the attorneys for defendant, by leaving said copies with the stenographer employed by said Edwin McBee in his office in the town of Rathdrum, county of Kootenai, state of Idaho at about 11 o'clock A. M., on the twenty-fourth day of April, 1905." On May 1st it appears that the district court was in session at Rathdrum, and at the hour...