Robson v. Colson

• Decision Date: 30 June 1903
• Citation: 72 P. 951,9 Idaho 215
• Parties: ROBSON v. COLSON
• Court: Idaho Supreme Court

72 P. 951

9 Idaho 215

ROBSON v. COLSON

Supreme Court of Idaho

June 30, 1903

APPEAL from District Court, Fremont County. Honorable Joseph C Rich, Judge.

Judgment for plaintiffs from which defendants appeal. Judgment affirmed.

Motion sustained and appeals dismissed, with costs.

Hawley & Puckett and W. F. Reeves, for Appellants, cite no authorities upon the points on which the case was decided.

F. S Dietrich, for Respondents.

It is well-settled principle that where motion for new trial is joint and one of the moving parties is not entitled to a new trial, motion should be overruled as to all. (Hogan v Peterson, 8 Wyo. 549, 59 P. 162.) Proposed statement and amendments thereto not delivered to clerk. This exact question was decided in Hoehnan v. New York Dry Goods Co., 8 Idaho 66, 67 P. 796. Appellants rely on no error of law; their whole argument is based upon an alleged insufficiency of the evidence. Revised Statutes, section 4441 provides: "When the notice of the motion designates as the ground of the motion the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient." And again: "If no specifications be made, the statement shall be disregarded on the hearing of the motion." The so-called specifications fall so far short of the requirements of the statute, that, for illustration merely, we cite a few of the cases, of which the reports are full, on the subject. (Bryan v. Bryan (Cal.), 70 P. 304; Zickler v. Deegan, 19 Mont 198, 40 P. 410; Dawson v. Schloss, 93 Cal. 194, 29 P. 31; Eddelbuttel v. Durrel, 55 Cal. 277; Van Pelt v. Parks, 18 Utah 141, 55 P. 381; Marks v. Taylor, 23 Utah 152, 63 P. 897; Swift v. Occidental etc. Min. Co. (Cal.), 70 P. 470, a very recent, well-considered case.)

STOCKSLAGER, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STOCKSLAGER, J.

This case comes here on appeal from the district court of Fremont county. The transcript was filed December 30, 1902. On the twenty-fourth day of April, 1903, defendants moved the court to dismiss the appeal from the judgment and at the same time a motion was filed to dismiss the appeal from the order denying motion for new trial.

The motion to dismiss appeal from the judgment follows: "Come now the respondents, John Fayle, Elizabeth Fayle, Dennis Small, James Colson, B. A. Hunsucker, Hudson Cattle Company, F. A. Pyke, John Robson, W. H. Robson and Pyke Bros. & Clark, and move the court to dismiss the appeal from judgment or decree entered herein, for the reason that the appeal was not taken from the same until more than a year had elapsed after entry of said judgment or decree."

The motion to disregard statement and to dismiss appeal from order denying new trial is filed by the same respondents and is based upon the following reasons:

1. Because no notice of intention to move for a new trial was properly given; that is, the notice was not signed by any party or attorney of record.

2. No proposed statement on motion was ever properly signed or served; that is, no statement was signed by the moving parties or their attorneys of record.

3. No proposed statement was served on all the parties or their attorneys within due time.

4. Neither the so-called proposed statement nor the amendments proposed thereto were ever delivered or lodged with the clerk of the district court.

5. There are no specifications or particulars in which it is alleged the evidence is insufficient to justify the decision such as to warrant the court in considering the evidence. On May 9, 1903, other defendants, respondents herein, filed the motion.

1. That the said supreme court has no jurisdiction in the matter of the appeal from the said judgment as shown by the said record herein.

2. That said appeal from the judgment was not taken within one year, as is required by section 4807 of the Revised Statutes of Idaho of 1887.

3. That the record herein fails to show a compliance with the provisions of section 4808 of the said Revised Statutes, in that it does not show service of notice of appeal on the adverse parties to this action.

Second. That said supreme court has not jurisdiction in the matter of appellants' appeal from the order overruling and denying their motion for a new trial as is shown by the record herein.

That certain respondents ask the dismissal of said appeal from the order denying appellants' motion for a new trial on the following additional grounds as is set forth in the record herein, to wit:

1. No notice of intention to move for a new trial has been given by or on behalf of said parties.

2. No notice of intention to move for a new trial on behalf of said parties, signed by said parties or their attorneys of record, or any attorneys of record, has been given.

3. No proper notice of intention to move for a new trial was filed and served within the time allowed by law.

4. No proper notice of intention, in proper form, has been served upon all the parties or their attorneys of record in this case.

5. No notice of intention in any form has ever been served upon all the parties to this suit or their attorneys.

6. No proposed statement has been served upon all the parties or their attorneys of record within the time allowed by law, or by stipulation, or by order of the court or the judge thereof.

7. No statement signed by the attorneys of record of said parties has been served upon any of the parties to the suit or their attorneys of record.

8. Said proposed statement is not signed or offered by the attorneys of record of said parties on behalf of whom it purports to be proposed. That neither said proposed statement nor any of the proposed amendments were ever delivered to or filed with the clerk of the trial court.

It is disclosed by the record that the judgment was signed by the judge and filed by the clerk on the thirteenth day of June, 1901. On the first day of October, 1902, the notice of appeal from this judgment was filed with the clerk. It will thus be seen that more than fifteen months have elapsed from date of judgment until the notice of appeal was filed. The statute requires that the appeal must be taken within one year from entry of judgment.

This question has been before this court in McCoy v. Oldham, 1 Idaho 465; Mathison v. Leland, 1 Idaho 712; Eddy v. Van Ness, 2 Idaho 101, 6 P. 115; Cronin v. Bear Creek G. M. Co., 3 Idaho 438, 32 P. 53; Schiller v. Small et al., 4 Idaho 422, 40 P. 53; Marchand v. Ronaghan, 9 Idaho 95, 72 P. 731.

In all these cases it was held that the appeal must be taken within the statutory time, and if we are to follow these decisions--and we can see no reason why we should not--the motion to dismiss the appeal from the judgment must be sustained.

This brings us to a consideration of the motions to disregard the statement on motion for a new trial, and to dismiss the appeal.

A great many reasons are urged in support of this motion. It is shown by the record that the eminent counsel who appear for appellants in this case were not connected with the trial of the case, their first appearance being for the purposes of this appeal. This may, and we think does, account for any errors--if any there be--that may have found a place in the record.

It seems that counsel who appeared for the appellants in the trial court were not retained in this court. Apparently their services ended with the trial there and this may also account to some extent, at least, for the condition of the record.

Counsel for respondents insist that the statement is insufficient, in that it does not sufficiently set out the particulars in which it is alleged the evidence is insufficient to support the...