State v. Speidel
| Decision Date | 29 March 1930 |
| Docket Number | 6588. |
| Citation | 286 P. 413,87 Mont. 221 |
| Parties | STATE et al. v. SPEIDEL. |
| Court | Montana Supreme Court |
Appeal from Thirteenth Judicial District Court, Big Horn County; O F. Goddard, Judge.
Proceeding by the State and others to condemn a right of way across the lands of A. Speidel. From an order granting a new trial after verdict, defendant appeals.
Affirmed.
Brown Wiggenhorn & Davis and Roy F. Allan, all of Billings, for appellant.
L. A Foot, Atty. Gen., S. R. Foot, Asst. Atty. Gen., and John W Bonner, of Helena, for respondents.
In a proceeding by the state highway commission to condemn a right of way across the lands of defendant, A. Speidel, a commission appointed by the court awarded defendant damages in the sum of $537.89. Defendant appealed from the award and thereafter secured a verdict in his favor of $2,180 damages, on which judgment was entered. Plaintiff moved for a new trial on the ground that the verdict was excessive. The motion was argued to the court on June 12, 1929, and the minute entry of that date recording the fact recites: "At the close of the argument the court announced that he believed that the damages * * * were excessive and stated that if the defendant would accept $1,000.00 as damages the court would not grant a new trial, otherwise a new trial would be granted." The entry closes with the declaration, "the defendant excepts to the ultimatum and ruling of the court."
On July 2, 1929, the court made, signed, and filed a formal order granting plaintiffs a new trial, prefaced by a recital of the statement in the minute entry contained and that the defendant failed to "accept the proposition made." Defendant has appealed from the order of July 2, contending that the court was then without jurisdiction to make any order in the premises.
Section 9400, Revised Codes 1921, declares that the court "shall decide" a motion for a new trial within fifteen days after its submission, and, if this is not done, "the motion shall, at the expiration of said period, be deemed denied." It is further provided that "the decision * * * may be entered in the minutes of the court, or may be made in writing. * * *"
To "decide" means "to determine; to form a definite opinion; to come to a conclusion; to give a decision, as the court decided in favor of the defendant." Webster's New Int. Dictionary. When the court has decided the motion, its decision may be announced orally in open court and thereupon "entered in the minutes of the court," or it may be made known by written order signed by the judge and filed with the clerk. United Railroads of San Francisco v. Superior Court, 197 Cal. 687, 242 P. 701. The decision must be made known in either event, or by either method, within fifteen days after the motion is submitted.
However, the court's power to make a conditional order denying the motion for a new trial if the prevailing party will consent to remit that portion of the award which the court deems excessive, and granting the motion if such consent is not forthcoming, has been long recognized in this jurisdiction and in other states having similar statutory provisions. Bentley v. Hurlburt, 153 Cal. 796, 96 P. 890; Harrington v. Butte, Anaconda & Pacific Ry. Co., 39 Mont. 22, 101 P. 149.
Counsel for defendant argue that the announcement of the court on June 12 decided nothing, but was merely the expression of the judge's opinion as to what he would do in the future. In support of this position they rely principally upon the pronouncement found in Goade v. Gossett, 35 Idaho 84, 204 P. 670, in which an appeal was dismissed as premature, based upon a letter written by the judge to the attorneys in the case, in which, after stating his reasons, the judge said: "Motion for new trial will therefore be overruled." The decision of the court was, it is clear, based upon the statement that "this letter does not appear to be part of the record in this...
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