Studebaker Bros. Co. of Utah v. Witcher

• Decision Date: 05 February 1921
• Docket Number: 2399.
• Citation: 195 P. 334,44 Nev. 442
• Parties: STUDEBAKER BROS. CO. OF UTAH v. WITCHER ET AL.
• Court: Nevada Supreme Court

195 P. 334

44 Nev. 442

STUDEBAKER BROS. CO. OF UTAH v. WITCHER ET AL.

No. 2399.

Supreme Court of Nevada

February 5, 1921

Appeal from District Court, White Pine County; C.J. McFadden, Judge.

Action by the Studebaker Bros. Company of Utah against A. B. Witcher and others. Judgment for plaintiff, and defendants appeal. Modified and affirmed.

(Ducker J., dissenting.) G. F. Boreman, of Ely, for appellant Witcher.

Chandler & Quayle, of Ely, for respondent.

DUCKER J.

This is an action of claim and delivery under the statute, brought to recover the possession of a certain automobile with equipment and accessories. The prayer of the complaint is as follows:

"Wherefore plaintiff demands judgment against the defendants for the recovery of the possession of said property, goods and chattels, or for the sum of $600, the value thereof, in case a delivery cannot be had, together with $350 damages, and for its costs of suit."

The plaintiff, respondent here, prevailed in the lower court and judgment was entered to the effect that the plaintiff recover from the defendants the possession of the property described in the complaint, together with $150 damages, and in case delivery thereof could not be had the sum of $600, the value of the property, in addition to its said damages and costs. A motion for a new trial was made which was denied by the court. From the judgment and order denying the motion for a new trial, the defendant appealed; the defendant Witcher appealing separately from the other defendants. This is the appeal of the defendant Witcher.

The trial court denied the motion upon the ground, among others, that appellant lost his right to a new trial by his failure to apply therefor within the time allowed by law. This is one of the questions presented by the assignment of errors. Respondent asserts that the motion was properly disregarded because not made within the time prescribed by the statute governing such cases, and for the further reason that the facts show a waiver of the right. The admitted facts bearing upon the question are as follows:

On November 30, 1918, the court, in the presence of the attorneys for appellant and respondent, orally rendered its decision in favor of respondent in open court, and directed the attorneys for the latter to prepare findings and judgment in accordance with the decision. It was thereupon agreed between the attorneys for appellant and respondent that the attorney for appellant should be advised immediately upon the entry of judgment in order that he might file a bond to stay execution pending a motion for a new trial. On December 16, 1918, respondent filed and served upon the respective attorneys for appellant and his codefendants written notice of the decision of the court. On December 21, 1918, the appellant on his own behalf filed with the clerk of the court and served upon counsel for respondent their several notices of intention to move for a new trial. It thus appears that appellant's notice of intention to move for a new trial was not filed or served upon respondent within ten days after the oral decision was rendered by the court, but within ten days after receiving said written notice of the decision. His counsel contends that such written notice is required by statute and that he was therefore within the time prescribed by law.

The question turns upon the meaning of section 381 of the present civil practice act of this state, concerning the kind of notice of the decision of the court required to be given to the party who may desire to move for a new trial. Section 197 of the old act adopted in 1869 (Comp. Laws, § 3292) in respect to this requirement read, "within ten days after receiving written notice of the rendering of the decision of the judge," and remained unchanged until the adoption of our present civil practice act in 1912. Section 381 of this latter act, containing this requirement, reads:

"The party intending to move for a new trial must, within five days after the verdict of the jury, if the action was tried by jury, or within ten days after notice of the decision of the court, or referee, if the action was tried without a jury, file with the clerk, and serve upon the adverse party, a notice of his intention, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or upon the minutes of the court." Section 5323, Revised Laws of Nevada.

It will be observed that while the phraseology of the requirement is slightly altered in the latter provision, there is no substantial change except in the omission of the word "written." It is suggested that this may have been an inadvertent omission on the part of the Legislature. We see nothing, however, in the language of the entire provision to warrant this assumption, and are inclined to the other view taken by counsel for appellant that the word "notice" was used in the sense of written notice, as commonly meant in judicial proceedings. In 29 Cyc. 1118, the rule is thus unqualifiedly stated:

"The rule is well settled that where a notice is required or authorized by statute in any legal proceedings the notice must be in writing." Note 33; Pearsons v. Lovejoy, 53 Barb. (N. Y.) 407; In re Cooper, 15 Johns (N. Y.) 533; Mason v. Kellogg, 38 Mich. 132; State v. Elba, 34 Wis. 169.

The reason for a rule which assumes that written notice is intended when notice is required in a statute prescribing legal proceedings is as sound as it is apparent. Contests arising from mistakes or misunderstandings which often might operate to unjustly deprive a party of his day in court, or otherwise result in the prejudice of a legal right, are thereby avoided and a simple and definite practice obtained.

It must be presumed that the Legislature of this state, when it enacted the statute containing said section 381, had knowledge of the state of the law in regard to the subject-matter involved. Clover Valley Land & Stock Co. v. Lamb, 43 Nev. 375, 187 P. 723. And it may likewise be credited with knowledge of the fact that the old practice act, of which the latter practice act adopted in 1912 is a revision, specifically required written notice to put in motion the time within which a party might give notice of his intention to move for a new trial. An intention, therefore, to change the meaning of notice in legal proceedings and thereby work a radical change in a statutory rule of practice uniformly extended by statute over a long period of time, ought not to be inferred in the absence of language furnishing the clearest evidence of such an intent. No reason of policy may be advanced for such a change, and, on the other hand, it seems incredible that the lawmaking body intended to abolish the simple and definite procedure of written notice, and substitute therefor a twilight zone wherein the conflicting statements of opposing parties would often be incapable of just solution as to the fact of actual notice. Such an interpretation would in many cases deprive a party of the right of appeal. Statutes giving the right of appeal are liberally construed in the furtherance of justice so far as may be compatible with the due preservation of orderly procedure, and an interpretation that will work a forfeiture of such right is not to be favored.

As written notice of the decision of the court is meant in the requirement under consideration, and appellant filed and served his notice of intention to move for a new trial within ten days after receiving such written notice, he did not lose his right in this respect, unless the facts shown amount to a waiver of such right. If he lost his right to move for a new trial by waiver, the written notice subsequently given could not restore it.

Upon the question of waiver contended for by respondent, its counsel have cited two decisions of the Supreme Court of California (Barron v. Deleval, 58 Cal. 95, and Gardner v. Stare, 135 Cal. 118, 67 P. 5), which we would discuss if we did not deem the question decided adversely to their contention in Keane v. Murphy, 19 Nev. 89, 6 P. 840. In the latter case counsel for defendant, who was the losing party, was in court when the oral decision was rendered and counsel for plaintiff directed by the court to prepare findings accordingly. Within a half hour thereafter one of the defendant's attorneys requested plaintiff's attorney "to add no more costs in entering the judgment than they could help," and plaintiff's attorney consented. Upon these facts the court held that there was no waiver of the right to have a written notice of the decision. The same state of facts appears here. The acts of the attorneys were similar. In Keane v. Murphy, supra, the attorney requested a simple favor concerning costs, and in the instant case the request was for immediate notification of the entry of judgment, that a bond to stay execution pending a motion for a new trial might be furnished. There is nothing in this request to indicate an intention to waive written notice of the decision.

"The legal presumption of a waiver of any right by a litigant will not be drawn, except in a clear case, and especially not, when to allow such presumption would deprive a party of his day in court." State v. Murphy, 29 Nev. 255, 88 P. 337.

In the case just cited this court recognized the correctness of the ruling on the question of waiver in Keane v. Murphy, supra, and we also consider it sound in principle and controlling on the facts presented here.

Appellant's contention that the lower court erred in denying his motion for a new trial and in rendering judgment in favor of respondent, in addition to the point just discussed, is based principally upon the following grounds: First, that there was no evidence establishing the fact that a...