Sterling v. Parsons

• Decision Date: 12 June 1893
• Citation: 33 P. 245,9 Utah 81
• Court: Utah Supreme Court
• Parties: H. L. STERLING, APPELLANT v. E. H. PARSONS, RESPONDENT

33 P. 245

9 Utah 81

H. L. STERLING, APPELLANT v. E. H. PARSONS, RESPONDENT

Supreme Court of Utah

June 12, 1893

APPEAL from an order granting a new trial of the district court of the third district, Hon. Charles S. Zane, judge. The opinion states the facts except that the question ruled upon was raised for the first time in the appellate court, and that the notice of motion did contain a specification of a large number of errors besides insufficiency of the evidence.

Reversed.

Mr Samuel H. Lewis and Mr. C. Ira Krebs, for the appellant.

The statement should have been disregarded and it was error to grant a new trial thereon. Benites v. Hampton, 123 U.S. 519; Wing v. Owen, 9 Cal. 247; Barrett v Tewksbury, 15, Cal. 356; Walls v. Preston, 25 Cal. 61; Hutton v. Reed, 25 Cal. 487; Burnett v Pacheco, 27 Cal. 408; Levi v. Seterson, 27 Cal. 688; Zenith v. Irvine, 32 Cal. 303; Butterfield v. Railway Co., 37 Cal. 381; People v. Railway Co., 43 Cal. 423; Ferrar v. Home Mutual, 47 Cal. 416; Budd v. Davis, 50 Cal. 120; Preston v. Hearst, 54 Cal. 596; Hershey v. Kness, 75 Cal. 115; Baird v. Peall, 92 Cal. 235; Wine Co. v. Behlow, 94 Cal. 108; Caldwell v. Greeley, 5 Nev. 258; Corbett v. Job, 5 Nev. 202. Hayne on New Trial, Sec. 149.

The notice of intention to move for a new trial is not sufficient nor will it answer for the specification in the statement. Hutton v. Reed, 25 Cal. 490; Thorp v. Freed, 1 Mont. 663, and cases cited above. The want of specifications cannot be waived. The law is imperative. Slater v. Railway Co., 7 Utah Cases cited above, and Budd v. Davis, 50 Cal. 120; Schreiber v. Whitney, 60 Cal. 431; Adams v. Dohrmann, 63 Cal. 417; Caldwell v. Greeley, 5 Nev. 262.

Messrs. MacDowall and Lysles and Mr. Charles K. Gilchrist, for the respondent.

The point was not raised in the court below and hence cannot be considered. This is the rule in the Supreme Court of the United States and in California. The notice of motion was attached to and filed with the statement and they together constitute one paper.

MINER, J. BARTCH, J., concurred.

OPINION

MINER, J.:

It appears from the record in this case that Lindquist Bros., who are doing business at Thistle, Utah were indebted to divers persons, and, being unable to pay their debts in full, made an assignment of their property to the plaintiff, H. L. Sterling, for the benefit of certain creditors. Mr. Fyler, one of the creditors, commenced suit by attachment against Lindquist Bros. after such assignment, and the defendant E. H. Parsons, as United States marshal, took possession of the assigned goods under such writ as the property of Lindquist Bros., and sold them at auction at Salt Lake City, claiming there was no sale for them at Thistle. The plaintiff thereupon brought this action against the defendant for the wrongful conversion of the property, claiming damages in the sum of $ 1,810.95. On the trial before a jury the plaintiff recovered a verdict in the sum of $ 1,625. The defendant moved for a new trial on a statement of the case. The notice of intention to move for a new trial was based upon the ground of insufficiency of the evidence to justify the verdict, and other statutory grounds. The statement on motion for new trial did not specify the particulars in which the evidence was alleged to be insufficient to justify the verdict, and no specification of errors or particulars was assigned in the statement. The court, upon hearing, made an order granting the respondent a new trial on the ground that the jury erred in finding the value of the goods and chattels too great under the evidence, from which order the plaintiff appeals to this court, and relies for a reversal upon the facts: "(1) The statement on motion for new trial does not specify the particulars in which the evidence is alleged to be insufficient to justify the verdict. (2) It does not specify the particular errors upon which the defendant would rely for a new trial. (3) The statement contains no assignment nor specification of errors whatever. (4) The court erred in not disregarding the statement. (5) The court erred in granting motion for new trial, as the evidence shows that the market value of the goods at Thistle was $ 1,800."

Subdivision 3, § 3402, 2 Comp. Laws 1888, provides that, "when the notice of motion designates, as the ground of the motion the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. * * * If no specification be made, the statement shall be disregarded on the hearing of the motion." The...