Sweeney v. Great Falls & C. Ry. Co.

• Decision Date: 13 July 1891
• Citation: 27 P. 347,11 Mont. 34
• Parties: SWEENEY v. GREAT FALLS & CANADA RY. CO.
• Court: Montana Supreme Court

27 P. 347

11 Mont. 34

SWEENEY v. GREAT FALLS & CANADA RY. CO.

Supreme Court of Montana

July 13, 1891

Appeal from district court, Cascade county; C. H. BENTON, Judge.

Action by George Sweeney against the Great Falls & Canada Railway Company. Judgment, for plaintiff.

The court refused to hear defendant's motion for a new trial. Defendant appeals. Reversed.

On a trial of this case January 27, 1891, a verdict was rendered in favor of plaintiff, on which a judgment on the same day was entered for plaintiff against defendant for $7,500. On February 2, 1891, the defendant filed and served its notice of intention to move for a new trial. On the 3d of February 1891, the following stipulation was entered into in open court between the counsel for the respective parties "Stipulated by attorneys Taylor & Pigott that defendant have until April 1st to make and serve statement and bring on motion for a new trial." Taylor was attorney for defendant and Pigott for plaintiff. On March 31st defendant filed with the clerk, and served on the plaintiff's attorneys, his statement on motion for a new trial. April 1st in open court, defendant presented the statement to the judge, and asked that it be settled, and the motion for a new trial be heard. To this the plaintiff objected, on the ground that service was not had upon him in time to bring said cause to a hearing on April 1st, as contemplated by the stipulation. The application to settle the statement was denied, and the court also refused to hear the motion for the new trial for the reason set forth in the plaintiff's objection. Defendant offered and moved the court to extend the time to enable plaintiff to prepare and serve amendments to the statement, and to extend the time for settling the statement and hearing the motion. The court held that the defendant had not complied with the stipulation, in that he had served and filed the statement on March 31st, and called up the motion on April 1st, and that on account thereof, and of the said stipulation, the court had no jurisdiction or authority to extend the time or pass upon the motion. Afterwards, on April 11th, 10 days having expired since the statement was served on plaintiff, and no amendents being served, the judge settled the statement, and certified it. On April 20th, five days' notice having been given to plaintiff, the defendant brought his motion for a new trial before the court, and moved that the same be heard; upon which the court made the following order: "That the motion for a new trial be denied a hearing on the ground that February 3, 1891, it was stipulated that such motion should be heard April 1st." Defendant appeals from the order of the court of April 1st, refusing to hear his motion for a new trial, and also from the order of April 20th, refusing to hear such motion.

George W. Taylor, for appellant.

Baum & Bishop, for respondent.

DE WITT, J., (after stating the facts as above.)

It appears that the respondent made objections to the time of serving the statement on motion for a new trial, and to the hearing of the motion. The court wholly refused to hear the motion. This was not the proper practice. In Quivey v Gambert, 32 Cal. 309, the court says: "A party moving for a new trial is entitled to a ruling upon his motion upon the basis upon which he presents it, in order that he may have and enjoy unembarrassed his right of appeal to this court. If his notice or statement has not been served or filed within time, that is a good reason why his motion should be denied when finally brought to hearing, but, under the method of procedure prescribed by the Code, it not intended that the record upon which the motion is made may be first stricken out, and the motion then denied. Such a course is, in effect, a denial of any...