State ex rel. Tripp v. District Court of Fourth Judicial Dist. In and For Missoula County, 9546

• Decision Date: 05 January 1957
• Docket Number: No. 9546,9546
• Citation: 305 P.2d 1101,130 Mont. 574
• Parties: The STATE of Montana ex rel. Don TRIPP and Clarence Tripp, Relators, v. The DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT IN AND FOR THE COUNTY OF MISSOULA and the Hon. C. E. Comer, Judge thereof, Respondents.
• Court: Montana Supreme Court

Page 1101

305 P.2d 1101

130 Mont. 574

The STATE of Montana ex rel. Don TRIPP and Clarence Tripp, Relators, v. The DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT IN AND FOR THE COUNTY OF MISSOULA and the Hon. C. E.

Comer, Judge thereof, Respondents.

No. 9546.

Supreme Court of Montana.

Decided Jan. 5, 1957.

Rehearing Denied Jan. 7, 1957.

Shallenberger & Paddock, Missoula, William F. Shallenberger, Missoula, argued orally, for relator.

Oskar O. Lympus, Missoula, for respondent.

ANGSTMAN, Justice.

This is an original application for a writ of prohibition or other appropriate writ challenging the jurisdiction of the respondent court to grant a new trial in a certain action.

The facts out of which the controversy arises are these: The Dewey Milling Timber Products, a corporation, hereinafter called the Dewey Company, brought an action against relators in the respondent court to recover the purchase price of lumber alleged to have been sold by it to relators.

The complaint contained only one cause of action but alleged the delivery of lumber to relators on February 10, 1954, at their instance and request of a specified number of board feet of the reasonable and agreed value of $801.93 and on April 29, 1954, lumber of the reasonable and agreed value of $513.30.

The answer consisted of a general denial and affirmative allegations to the effect that relators did have business transactions with the Dewey Company but that relators have paid in full for what lumber was bought by them and that nothing remains due and owing from them.

The cause was tried to the court sitting with a jury. The jury found in favor of relators and against the Dewey Company. Judgment was entered on the verdict on January 27, 1955.

On February 3rd, the Dewey Company served and filed notice of intention to move for a new trial, motion for new trial and affidavits of Jack Foster and Harold Luchau in support of the motion.

The motion for new trial was based upon three grounds: First, accident or surprise which ordinary prudence could not have guarded against; second, newly discovered evidence, and third, insufficiency of the evidence to justify the verdict and that it is against law.

These grounds are paragraphs 3, 4 and 6 of R.C.M.1947, § 93-5603. The first and second grounds, because of section 93-5604, are made only on affidavits, whereas the third ground above stated is made only on the minutes of the court.

After the filing of the motion for new trial and the accompanying affidavits on the part of plaintiff in the action in respondent court, relators on February 10, 1955, obtained an order from respondent court granting them ten days additional time within which to prepare, serve and file counter affidavits.

Thereafter and within the time allowed by order of the court relators filed counter affidavits by Clarence Tripp and Don Tripp, the last of which counter affidavits was filed on February 17, 1955.

Thereafter, and on March 11th, the Dewey Company served on relators a notice calling up the motion for new trial for hearing on March 15th at 9:30 a. m.

The minutes of the court show that the motion was argued by respective counsel on March 15th; that one witness, Lawrence Beavers, testified; that the court heard the testimony and being fully advised 'said motion was submitted and by the court taken under advisement.'

On March 25th the court entered an order reciting that in the affidavit made by Harold Luchau it is stated that William Nicholas, 'brother-in-law of the defendants, made the statement to said Harold Luchau that in the month of January 1955, and before the trial of this action, one of the defendants, Clarence Tripp, admitted to him that he owed the account involved in this action to the Dewey Milling Timber Products, the plaintiff herein. The statement is further made in this affidavit that if he is subpoened on a new trial, the said William Nicholas will so testify.

'The Court is of the opinion it should have definitely before it the testimony of the said William Nicholas in this matter before determining this motion * * *'

The court thereupon ordered the issuance of a subpoena to William Nicholas, returnable on March 26, 1955, to relate the conversation referred to in the affidavit. The order recites that counsel for both parties may be present and ask any relevant questions.

The minute entry of March 26th recites: 'Oskar O. Lympus, attorney for the plaintiff and the defendants and their attorney, William F. Shallenberger, came into court, this being the time set for hearing the testimony of William Nicholas. William Nicholas and Clarence Tripp were sworn and testified, and the Court having heard their testimony and being fully advised in the premises, and respective counsel having agreed thereto, the motion of plaintiff for a new trial is deemed finally submitted.'

On March 28th, the court granted the motion for new trial and this proceeding followed.

Relators contend that the motion for new trial was not heard within the time required by law and hence that the order granting it was wrongful and without authority of law.

R.C.M.1947, § 93-5606, requires the hearing on the motion for new trial 'within ten days after the notice of motion is filed when the motion is made only on the minutes of the court and within ten days after the filing of affidavits and counter-affidavits when the motion is made on affidavits.'

As above noted the last counter affidavit was filed on February 17th and the hearing on the motion for new trial did not take place until March 15th.

However the time for filing counter affidavits had been extended by order of the court and hence we are called upon to determine whether the ten-day period mentioned in section 93-5606, supra, commenced to run at the time of filing the affidavits and counter affidavits or at the expiration of the time allowed the filing thereof. The latter interpretation we think is the only rational one to be placed upon the statute.

Under R.C.M.1947, § 93-5605, a party opposing the granting of a new trial may obtain thirty days additional time within which to file counter affidavits and then actually file no counter affidavits and if the time of filing marks the beginning of the ten-day period, it would then be too late to hear the motion for new trial and the statute would operate as a trap and be subject to abuse preventing the actual hearing of the motion. Such an interpretation will not be adopted if the statute is reasonably susceptible of any other rational construction.

We think what the statute, section 93-5606, supra, means is that the affidavits and counter affidavits are not filed within the meaning of that statute until expiration of the time within which they may be filed.

When then did the time expire within which affidavits or counter affidavits might have been filed? R.C.M.1947, § 93-5605, provides in part: 'If the motion is to be made upon affidavits, the moving party must, within ten days after serving the notice, or within such further time not to exceed thirty days in all, as the court in which an action is pending or a judge thereof may allow, file such affidavits with the clerk, and serve a copy thereof upon the adverse party, who shall have ten days thereafter, or such further time not exceeding thirty days in all, as the court may allow, to serve and file counter affidavits.'

Under this section the time to file counter affidavits does not begin to run until expiration of the time for filing affidavits by the moving party. The word 'thereafter' refers to the time allowed for filing affidavits and not to the actual time of their filing.

Here no addition time for filing affidavits by the moving party was granted. Its time for filing affidavits expired on February 14th.

Counter affidavits then were required to be filed on or before February 24th.

Ten additional days were granted which extended the time to March 6th.

The motion which was heard on March 15th was in time and the decision thereon was likewise in time under section 93-5606, supra.

The next contention is that the court erred in receiving evidence on the hearing on the motion. This point is well taken.

A new trial is purely the creature of statute. The procedure to be followed in moving for a new trial is found in the statutes, and not elsewhere. State ex rel. Sinko v. District Court, 64 Mont. 181, 186, 208 P. 952. In Montana the provisions of our Code which countenance a motion for a new trial make no provision for the introduction of oral testimony at the hearding, of for that matter at any other time.

To the contrary by statute the legislature has provided that such a motion be heard upon the minutes of the court, or upon affidavit, or upon both. Otherwise it may not be heard at all. Compare State ex rel. Sinko v. District Court, supra. Accordingly it is wholly immaterial whether the witness Nicholas testified over objection or by consent. In any case the court exceeded its jurisdiction in hearing this testimony at all. But if we consider the evidence taken as equivalent to affidavit, nevertheless they were unauthorized as not coming in time. The time for serving and filing affidavits and counter affidavits had expired.

Likewise if we consider the judge's action in requiring Mr. Nicholas to be subpoenaed as equivalent to an order extending the time for filing affidavits the same was unauthorized because coming too late.

An order extending the time for affidavits or counter affidavits in order to be effective must be made before the lapse of the time theretofore granted. Compare Hutchinson v. Burton, 126 Mont. 279, 247 P.2d 987.

Under the facts here shown it was error to receive the evidence on the hearing of the motion for new trial. Since neither the record of the trial nor the testimony given and heard on the motion for new trial is before us, we are unable to determine in this proceeding whether relators were adversely affected by the evidence complained of...