State v. District Court of Second Judicial Dist.

• Decision Date: 11 January 1909
• Citation: 99 P. 139,38 Mont. 119
• Parties: STATE ex rel. COHN v. DISTRICT COURT OF SECOND JUDICIAL DIST. et al.
• Court: Montana Supreme Court

99 P. 139

38 Mont. 119

STATE ex rel. COHN v. DISTRICT COURT OF SECOND JUDICIAL DIST. et al.

Supreme Court of Montana

January 11, 1909

Application by the State, on the relation of Louis Cohn, next friend of Lessing Cohn and another, minors, against the District Court of the Second Judicial District and George M. Bourquin, a judge thereof, for a writ of supervisory control. Dismissed.

Maury & Templeman, for relator.

W. I Lippincott, for respondents.

HOLLOWAY J.

On and prior to March 18, 1908, there was pending in the district court of Silver Bow county, and in the department thereof presided over by Hon. George M. Bourquin, Judge, a certain cause entitled "Sidney Cohn and Lessing Cohn, Minors, by Louis Cohn, their Guardian Ad Litem, v. Henry Albertson and George Kendall, No. A741," in which cause Maury & Templeman were the attorneys for the plaintiffs, and W. I Lippincott was the attorney for the defendants. Such proceedings were had and done in the cause that on March 18th, after trial and a verdict, judgment was duly given made, and entered in favor of the plaintiffs and against the defendants for the sum of $3,600 and costs. On March 19th the attorneys for the plaintiffs sent through the mail to Mr. Lippincott a letter notifying him that on March 18th the judgment above mentioned had been rendered and entered. On April 18th the defendants, through Mr. Lippincott, served and filed their notice of intention to move for a new trial, specifying, as the grounds of the motion, insufficiency of the evidence to justify the verdict, and excessive damages, appearing to have been given under the influence of passion and prejudice, and gave notice that their motion would be made upon a statement of the case and bill of exceptions, and also upon the minutes of the court. The attorneys for the plaintiffs made timely objection that the notice of intention came too late. On April 22d another notice of intention to move for a new trial was served and filed by counsel for the defendants, which notice contained these grounds, in addition to the grounds of the motion mentioned in the first notice, to wit: That the verdict is against law, and errors in law occurring at the trial and excepted to by the defendants. This notice specified that the motion would be made upon the minutes of the court, and that the second notice was intended to supersede and take the place of the notice given on April 18th. Timely objection was also made to this notice. It appears that there was not any bill of exceptions presented in support of this motion for a new trial. On June 13th the district court heard arguments upon the motion for a new trial, over objection of counsel for the plaintiffs, and on June 27th an order was made granting the motion for new trial unless the plaintiffs would remit all of the judgment in excess of $225. Counsel for the plaintiffs immediately gave notice to the court that they would refuse to remit any portion of the judgment, and thereupon the court made an absolute order granting the defendants a new trial. On August 2d the defendant George Kendall died, and there was not any executor or administrator of his estate. On November 28th the plaintiffs made application to this court for a writ of supervisory control, thereby seeking to have annulled the order of the district court granting the defendants a new trial.

It is earnestly contended by counsel for the relators in this court that the notice of intention to move for a new trial was served and filed too late. Opposing counsel replies by saying that he was never given notice of the entry of judgment, though admitting that he did receive the letter of March 19th, stating that a judgment had been entered. This first contention, then, is to be resolved by determining what effect, if any, shall be given to the letter of March 19th.

Section 6796, Rev. Codes, provides, among other things: "The party intending to move for a new trial must, within ten days after receiving notice of the entry of the judgment, serve upon the adverse party and file with the clerk a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits or the minutes of the court or a bill of exceptions. ***" Chapter 5, pt. 2, tit. 14 (sections 7145-7152), of the same Code, is entitled "Notices and Filing and Service of Papers." Section 7149 provides: "*** After appearance, a defendant or his attorney, is entitled to notice of all subsequent proceedings of which notice is required to be given. ***" Since by section 6796, above, the defeated party is not required to act until he receives notice of the entry of judgment, but has ten days after the receipt of such notice within which to serve and file his notice of intention to move for a new trial, we must conclude that the entry of judgment is one of the "subsequent proceedings" mentioned in section 7149 above, of which the defendants in Cohn et al. v. Albertson and Kendall were required to be given notice. Section 7145 provides that notices shall be in writing, and, so far as a case of this character is concerned, section 7146 provides the manner of making service of any notice required to be served.

In the return to the order to show cause herein, it is alleged-and not controverted by counsel for relators-that Maury & Templeman and W. I. Lippincott all reside in Butte, and that at all the times mentioned, Maury & Templeman knew where Lippincott's office and residence were located. In view of these facts, was the service by mail of the notice of entry of judgment sufficient? Section 7146, above, provides that service of notice upon an attorney is to be made (a) by personal service, or (b) by leaving the notice in his office with his clerk or other person having charge, or (c) by leaving the notice in a conspicuous place in his office, if there is not any one in the office, or (d) if the office is not open, by leaving the notice at the attorney's residence with some person of suitable age and discretion, and, finally, if the attorney's residence is not known, then (e) by sending such notice through the mail. The second subdivision of section 7146 is not applicable to the facts of this case, and need not be considered. There was not any attempt to make service upon Albertson or Kendall, but the service, if any, was sought to be made upon their attorney, W. I. Lippincott. It is to be observed, from the portion of the section which we are considering, that service of a notice upon an attorney can be made through the mail only in the event that the place of residence of the attorney is not known. Subdivision "e" above, then, has no application here, since it...