Storer v. Heitfeld

• Decision Date: 29 October 1909
• Citation: 17 Idaho 113,105 P. 55
• Parties: GEORGE H. STORER, Respondent, v. HENRY HEITFELD and FRED T. DUBOIS, Appellants
• Court: Idaho Supreme Court

105 P. 55

17 Idaho 113

GEORGE H. STORER, Respondent, v. HENRY HEITFELD and FRED T. DUBOIS, Appellants

Supreme Court of Idaho

October 29, 1909

BILL OF EXCEPTIONS-FORM-MOTION FOR NEW TRIAL-AFFIDAVITS-MOTION FOR CONTINUANCE-SUFFICIENCY OF SHOWING.

1. A document or paper may be made a part of a bill of exceptions by reference, without copying the same therein, providing the identification is sufficient and the paper or document purporting to be thus identified in the bill is placed in the record; and in the absence of a showing to the contrary, the court will presume that the document or paper appearing in the record is the one identified in the bill of exceptions.

2. The statute of this state does not require a formal motion to be made for a new trial; yet it contemplates a motion for a new trial, and when such motion is put in writing and filed as a part of the records in the case, the same will not be stricken.

3. Under the provisions of sec. 4441, Rev. Codes, a party intending to move for a new trial must, within ten days serve notice, designating therein the grounds upon which the motion will be made, and whether the same will be made upon affidavits, etc.; and under the provisions of subd. 1 of said section, if the motion is to be made upon affidavits, the moving party must within ten days after service thereof, or such further time as the court or judge may allow, file such affidavits with the clerk.

4. And where the notice of intention to move for a new trial does not state that the motion will be based upon affidavits, it is improper to file affidavits, and if filed, the same will be stricken from the records.

5. Where a notice of intention to move for a new trial states that the motion will be based upon affidavits, such affidavits must be filed within ten days after the service of such notice, unless the court or judge allow further time to file the same.

6. A motion for a continuance is addressed to the sound discretion of the trial court, and his rulings thereon will not be disturbed on appeal unless it appears there has been an abuse thereof.

7. A motion for a continuance upon behalf of two defendants, which shows that the defendants agreed that the cause might be set down for trial, and in accordance therewith one of the defendants consented for said cause to be set for trial, and afterward notified his codefendant of such fact, and at such time such codefendant was absent from the state attending to the burial of a deceased brother, and for that reason was unable to be present at the time the cause was set for trial and it appearing that the defendants have a good defense to said action, and that the absent defendant can be present at the next term of the district court, and it further being shown what facts the absent defendant will testify to, and that such facts are pertinent and in support of the defendants' defense to said action; and it appearing that the application for a continuance is made in good faith, it is error for the trial court to overrule the motion for a continuance.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.

An action to recover debt. Judgment for plaintiff. Defendants appeal. Reversed.

Judgment reversed and a new trial ordered. Costs awarded to appellants. Petition for rehearing denied.

Clay McNamee, and James L. Harn, for Appellants.

"It is error to refuse to grant a motion for a continuance on account of the absence of a witness, or admit the affidavit in evidence, when it is in due form, and shows the evidence to be material, and the inability of the affiant to procure his attendance." (Switzer v. Lottenville, 4 Ill.App. (4 Bradw.) 219; Bradbury v. Dougherty, 7 Blackf. (Ind.) 467; Wardlaw v. Wardlaw, 39 Ga. 53; Robertson v. Woolley, 6 Wash. 156, 32 P. 1060.)

"A continuance on account of the serious illness of the plaintiff is properly granted." (Elliott v. Field, 21 Colo. 378, 41 P. 504.)

All of the portions of the transcript on appeal sought to be stricken on the grounds specified in respondent's motion to strike are in strict compliance with the provisions of sec. 4428, Rev. Codes, the papers, pleadings, etc., being printed in the transcript and fairly identified in each bill of exception. (Shurtliff v. Extension Ditch Co., 14 Idaho 416, 94 P. 574.) The time within which affidavits sought to be stricken by this motion were filed is not and was not jurisdictional. (Smith v. Whittier, 95 Cal. 279, 30 P. 529; Spotiswood v. Weir, 80 Cal. 448, 22 P. 289; Howe v. Briggs, 17 Cal. 386.)

Where an order or decision and the papers upon which it is made are a part of the records and files in the action, they need not, unless desired by the party objecting thereto, be embodied in a bill of exceptions, but the same appearing in the records or files, may be reviewed upon appeal as though settled in such bill of exceptions. (Sec. 4427, Rev. Codes; Taylor v. McCormick, 7 Idaho 524, 64 P. 239; Warren v. Stoddart, 6 Idaho 692, 59 P. 540.)

H. G. Redwine, for Respondent.

The granting or refusing a continuance rests in the sound discretion of the trial court, and this court will not review that discretion unless there appears to have been a very gross abuse in its exercise. (Herron v. Jury, 1 Idaho 166; Cox v. Northwestern Stage Co., 1 Idaho 376; Lillienthal v. Anderson, 1 Idaho 676; Richardson v. Ruddy, 10 Idaho 151, 77 P. 972; Robertson v. Moore, 10 Idaho 115, 77 P. 218; Holt v. Gridley, 7 Idaho 416, 63 P. 188; Reynolds v. Corbus, 7 Idaho 481, 63 P. 884.)

The notice of intention failed to state that the motion for a new trial would be based upon affidavits as required by sec. 4441, Rev. Codes. (Gregg v. Garrett, 13 Mont. 10, 31 P. 721; Hughes v. Alsip, 112 Cal. 587, 44 P. 1027.) "Notice must specify upon what evidence motion will be made, whether upon affidavits, minutes of the court, bill of exceptions, or a statement of the case." (14 Ency. Pl. & Pr. 876; 29 Cyc. 938.)

After the time in which affidavits, statements and bills of exceptions may be filed, as required by sec. 4441, the right is absolutely barred. (In re Kasson's Estate, 141 Cal. 33, 74 P. 439; Freese v. Freese, 134 Cal. 48, 66 P. 43; Hoehnan v. N.Y. Dry Goods Co., 8 Idaho 73, 67 P. 796; Swartz v. Davis, 9 Idaho 239, 74 P. 800; Henry v. Merguire, 106 Cal. 142, 39 P. 599; Connor v. Southern Cal. Motor Road Co., 101 Cal. 429, 35 P. 990.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

This is an action to recover the sum of $ 2,500 with interest. The plaintiff alleges that on September 9, 1903, at the request of the defendants, plaintiff paid to one A. N. Buchanan the sum of $ 2,500, which amount was paid in the form of a check drawn by plaintiffs on the Lewiston National Bank of Lewiston, Idaho, in words and figures as follows, to wit:

"Lewiston, Idaho, Sept. 9th, 1903.

"The Lewiston National Bank pay to the order of A. N. Buchanan $ 2,500.00, Two thousand five hundred and no-100 dollars.

(Signed) "GEO. H. STORER."

That said sum was afterward paid by said Lewiston National Bank to the order of said Buchanan; that in consideration thereof, said defendants promised and agreed to pay said sum to plaintiff within ten days from the time said money was paid by plaintiff to said Buchanan; but said sum and no part thereof having been paid on February 8, 1904, plaintiff and defendants entered into an agreement on that date, under and by the terms of which the time of payment was extended to the first day of May; and on said February 8th the plaintiff promised and agreed to extend the time of payment to said May 1st, and said defendants promised and agreed to and with plaintiff, that in consideration of said extension, interest would be paid him on said sum to May 1st, upon which date it was agreed by and between said parties said sum was to become due; that demand has been made but said sum has not been paid. The defendants filed an answer and in effect denied all the allegations of the complaint.

On November 23, 1908, counsel for appellants gave notice to respondent that on November 25th they would move for a continuance until the first day of the next regular or special term of said court, and that said motion would be based on the ground of the absence and inability to attend as a witness on November 27th, of defendant Fred T. Dubois, an important and material witness for the defense in the trial of said cause; and that on the hearing of said motion the defendants would use and rely upon all the records and files and the affidavit of Henry Heitfeld attached to the motion. This notice was followed by a motion for a continuance dated November 23, 1908. The affidavit, upon which the motion was based, made by Henry Heitfeld, is in substance as follows That he is one of the defendants; that Hon. Fred T. Dubois, the other defendant, resides in the city of Blackfoot, Bingham county, Idaho; that the defendants have a full and meritorious defense and have been so advised by counsel. That Fred T. Dubois is an important and material witness, and if present would testify that at no time or place did he ever request the plaintiff in this action to pay to A. N. Buchanan the check mentioned in plaintiff's complaint, or any other sum of money whatever; nor was said sum of money ever paid for the use or benefit of either himself or affiant, and that said Dubois would further testify, if present, that he never promised within ten days after said check was given, or at any time, to pay said or any sum of money to the plaintiff, and never on February 8th, or at any time, entered into any agreement with plaintiff and this affiant to have the time of payment extended; and that no agreement or...