State v. District Court of Eighth Judicial Dist. in and for Cascade County
| Decision Date | 10 July 1922 |
| Docket Number | 5146. |
| Citation | 208 P. 952,64 Mont. 181 |
| Parties | STATE EX REL. SINKO v. DISTRICT COURT OF EIGHTH JUDICIAL DISTRICT IN AND FOR CASCADE COUNTY ET AL. |
| Court | Montana Supreme Court |
Application by the State of Montana, on the relation of Peter Sinko, for an order under the Supreme Court's supervisory power to set aside an order of the district court of Cascade County in relator's case against John McClure granting defendant's motion for a new trial. Writ issued.
p>Page C. A. Spaulding, of Helena, and David J. Ryan, of Great Falls, for relator.
R. K West, of Great Falls, for respondents.
This is an original application to this court for an order, under its supervisory power, to annul and set aside an order of the district court of Cascade county made by Hon. John J. Greene as judge presiding, in the case of Peter Sinko v. John McClure, granting the defendant's motion for a new trial.
The facts as they appear from the relator's petition summarized, are as follows: In an action pending in Cascade county, wherein Peter Sinko was the plaintiff, and John McClure was the defendant, judgment upon a jury's verdict was rendered in favor of the plaintiff and against the defendant on November 25, 1921, and thereafter, on November 29, 1921, the defendant McClure served and filed a notice of motion for a new trial. On January 20, 1922, there was served and filed a formal motion for a new trial. On January 26, 1922, an affidavit was made and filed by the plaintiff Sinko disqualifying Hon. J. B. Leslie, the judge presiding at the trial of the case, and on April 22, 1922, Judge Leslie made an order calling in Hon. John J. Greene, the judge of the Nineteenth judicial district, to hear and determine the motion. On April 22, 1922, a hearing was had on the motion before Judge Greene as presiding judge, for decision. Judge Greene did not rule on the motion within 15 days after the same was submitted to him, but on May 13, 1922, he, as said judge, caused to be made and entered in said court an order purporting to grant to the defendant therein, John McClure, a new trial, and purporting to set aside the verdict rendered in plaintiff's favor. It is further alleged, and as special reasons why this court should exercise jurisdiction by the writ of supervisory control, that the order purporting to grant the defendant a new trial was in excess of the jurisdiction of the district court or the presiding judge thereof to make; that unless said court and Judge Greene, as presiding judge, are restrained, the relator in this proceeding, the plaintiff below, will be prevented from realizing upon, collecting, or enforcing his judgment against the defendant McClure, and that it is proposed to proceed with said cause in said district court and to try the same in utter disregard of the judgment in relator's favor; that before an appeal could be taken to this court and heard herein, the defendant McClure will have disposed of all of his property which is now subject to execution on said judgment; and that by reason of all the matters alleged, the relator does not have any plain, speedy, or adequate remedy by appeal in the ordinary course of law.
Attached to the petition as exhibits are purported true copies of various pleadings, notices, orders, etc., referred to herein. An order to show cause was issued by this court on June 1, 1922, returnable June 10, 1922. On the latter date the respondents appeared by counsel and moved to quash the order to show cause upon the following grounds: (1) That the facts in relator's affidavit are not sufficient to warrant any relief; (2) that relator's affidavit does not state facts sufficient to give the court jurisdiction to act; (3) that the full record herein shows no emergency such as to warrant the relief demanded; (4) that relator has a plain, speedy, and adequate remedy other than that which may be obtained through an original proceeding in this court; (5) that respondents acted fully within their jurisdiction and rendered decision therein on said motion for new trial within the time provided by law. At the same time, respondents filed what purports to be a transcript of the minutes of the court as regards the motion for a new trial, and of a writ of execution issued on the judgment with the sheriff's return indorsed thereon, unsatisfied. These are certified to by the clerk of the court as true copies of the originals. No answer or other return was made or requested to be made on the return day, and the matter was thereupon submitted to this court for determination and decision; the respondents having been given additional time to file a brief, which they filed on June 19th. Prior thereto, and on June 15th, respondents filed what purports to be a "motion to correct transcript" without leave of court, which motion purports to include therein a copy of a purported "corrected transcript," which appears to contain certain purported amendments to the district court's minutes made pursuant to an order of Judge Greene, entered on June 13th in the case of Sinko v. McClure.
This court will not permit the purported "corrected transcript" to be filed, because: First, the order to show cause issued from this court directed to Judge Greene, and upon the original of which on June 2, 1922, he acknowledged due and legal service over his own signature, commanded that he "desist and refrain from any further proceedings in said cause of Peter Sinko v. John McClure until the further order of this court," and any action of his thereafter in connection with this cause, and any attempt on his part to correct the minutes of the district court so far as relate to that cause, were in entire disregard of the court's order; and, second, this cause was submitted to this court on June 10, 1922, for final determination and judgment, at which time there was not any application or request made to file an answer or return to the order to show cause, other than the motion to quash. The certified copies of the order and minutes filed by the respondents on the 10th of June, the return day, were substantially the same as those set out in relator's petition, and it would be trifling with court procedure to now permit them to say that the certified copy of the transcript respondents filed in this court on June 10 did not correctly state the proceedings had and taken on the motion for new trial.
According to the relator's petition and the transcript of the court minutes filed by the respondents on the return day, the motion for new trial was heard by Judge Greene, as the presiding judge of the district court, on April 22d, and by him "taken under advisement." Thereafter, and on May 13th, the following order was entered in the minutes of the court:
"The motion for a new trial in the above-entitled action having come on for hearing on the 22d day of April, 1922, before Hon. John J. Greene, and the same having been taken under advisement, the said motion is hereby granted and the verdict of the jury in said cause rendered is set aside and the defendant is hereby granted a new trial therein. Done in open court this 13th day of May, 1922.
It is clear from the foregoing that the motion was submitted to and taken under advisement by the district court on April 22d, and that it was not decided until May 13th--more than 15 days after it was submitted.
The determinative question of law, therefore, in this case, is whether, by the failure of the district court to decide the motion for a new trial within 15 days after the same was submitted, the motion for a new trial was by operation of law thereby denied, and the district court thereby deprived of jurisdiction to subsequently make an order granting a new trial. The other questions attempted to be raised by the relator have been expressly waived.
That new trial proceedings are purely statutory has been many times declared by this court: First, in the case of Ogle v. Potter, 24 Mont. 501, 62 P. 920, and this decision has been followed by this and other courts and by text-writers. Spelling on New Trial & Appellate Procedure, § 24. And this court has many times held that this statutory remedy can only be invoked in the manner, within the time and upon the grounds provided for in the statute. State v. Kelly, 57 Mont. 123, 187 P. 637; State v. District Court, 49 Mont. 595, 144 P. 159; Canning v. Fried, 48 Mont. 560...
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