Stephenson v. Home Ins. Co. of New York

• Decision Date: 05 May 1923
• Docket Number: 5121.
• Citation: 214 P. 954,67 Mont. 193
• Parties: STEPHENSON v. HOME INS. CO. OF NEW YORK.
• Court: Montana Supreme Court

214 P. 954

67 Mont. 193

STEPHENSON v. HOME INS. CO. OF NEW YORK.

No. 5121.

Supreme Court of Montana

May 5, 1923

Commissioners' Opinion.

Appeal from District Court, Cascade County; J. B. Leslie, Judge.

Action by W. A. Stephenson against the Home Insurance Company of New York. From a judgment for plaintiff, and an order granting plaintiff's motion for a new trial, for apparent error defendant appeals. Judgment affirmed, and appeal dismissed.

Freeman Thelen & Frary, of Great Falls, for appellant.

T. F McCue, of Great Falls, for respondent.

ROSE C.

This is an action to recover on two fire insurance policies. The case was tried to a jury, and plaintiff recovered judgment. Thereafter plaintiff's motion for a new trial was granted for the reason that the trial court had invaded the province of the jury in peremptorily directing them, if they found for plaintiff, to deduct the sum of $850, the interest claimed by another in the property insured. This was a matter about which there was a conflict in the testimony, and which should have been submitted to the jury for their determination, so that the trial court very properly granted plaintiff's motion. Defendant attempts to appeal from the judgment and from the order granting plaintiff's motion for a new trial.

The sole question presented to this court for determination is whether or not the defendant insurance company waived the provision in the policies requiring a sworn statement or proof of loss to be furnished within 60 days after the fire.

That the trial court erred in granting respondent's motion for a new trial is assigned as reversible error by appellant. This specification of error was not argued in appellant's brief, and, having failed and neglected to argue the same, it will be deemed to have been waived or abandoned, as this court has repeatedly held in a long line of decisions, a few of which are here cited: Collier v. Ervin, 2 Mont. 335; Maloney v. King, 25 Mont. 188, 64 P. 351; Frank v. Butte & Boulder, etc., Co., 48 Mont. 83, 135 P. 904; Western Min., etc., Co. v. Melzner, 48 Mont. 174, 136 P. 44; Trogdon v. Hanson Sheep Co., 49 Mont. 1, 139 P. 792.

This disposes of the appeal from the order granting a new trial and, this question having been determined, there is then no judgment from which to appeal. In Coombs v. Barker, 33 Mont. 74, 81 P. 737, this question was raised. The court intimated that the granting of the motion for a new trial did not thereupon immediately vacate the judgment, and...