Times Printing & Publishing Co. v. Babcock
| Decision Date | 07 December 1918 |
| Parties | TIMES PRINTING AND PUBLISHING COMPANY, a Corporation, Plaintiff, v. WILLIAM A. BABCOCK, Judge of the District Court of the Fourth Judicial District of the State of Idaho, in and for Twin Falls County, Defendant |
| Court | Idaho Supreme Court |
APPEAL-NEW TRIAL-MOTION-WHEN TO BE MADE-NOTICE-EFFECT OF-JURISDICTION.
1. Rev Codes, sec. 4441, as amended by chap. 118, Sess. Laws 1911 p. 377, provides for a "Notice of Motion for New Trial" in lieu of a "Notice of Intention to Move for a New Trial."
2. There is a substantial compliance with the provisions of Rev Codes, sec. 4441, as amended, supra, even though the words "intends to move for new trial" are used instead of the words "will move," provided the motion for new trial in other respects complies with the statute and adequately informs the defendant as to the grounds of the motion. The court will look to the substance and purpose of the notice in passing upon its sufficiency.
3. A notice of motion for new trial need not designate the time when the motion will be made. The motion is a mere formality and may be made at any time prior to the hearing. The party resisting the application may, upon his own motion, demand a hearing at any time after notice of motion has been filed.
4. The filing of a notice of motion for new trial within the time required by statute continues the jurisdiction of the trial court to rule upon the motion, and this jurisdiction, in the absence of lack of diligence, is not affected by the expiration of the time within which an appeal may be taken from the judgment.
Original proceeding for a writ of mandate. Writ issued.
Writ issued. Costs awarded to plaintiff.
E. M. Wolfe and J. F. Martin, for Plaintiff.
The record now before the court contains all of the records, papers and files of the case which the court considered, and no other files or records or matters could be certified up to the appellate court. This being true, the court could not give us a consideration upon its merits and could not give us adequate relief. It could do nothing but command the court to hear the motion upon its merits and then let the dissatisfied party bring up the record on the second appeal. No formal action is necessary. (Kelley v. Clark, 21 Idaho 231, 121 P. 95; Storer v. Heitfeld, 17 Idaho 113, 122, 105 P. 55.)
As to the contents of notice of motion, see Andregg v. Oregon Short Line Ry. Co., 22 Idaho 437, 126 P. 528. In the above case the court uses "Intention to Move" and "Notice of Motion" as if they meant one and the same thing.
Sweeley & Sweeley, for Defendant.
There is a distinction between a notice of a motion and the motion itself, which must be observed. (Herrlich v. McDonald, 80 Cal. 472, 22 P. 299.)
The judgment in question was entered February 23, 1918, and the time for appeal expired May 24th. It appears, therefore, that the action was no longer pending in the district court, unless its termination was suspended by a proper legal proceeding. "Upon the entry of judgment the jurisdiction of the trial court over the subject matter of the suit and the parties was exhausted unless preserved in the mode authorized by statute." (White v. White, 130 Cal. 597, 80 Am. St. 150, 62 P. 1062.)
If the motion is not made until after the time of appeal has passed, it cannot be considered, for the reason that the judgment has become final and the court no longer has jurisdiction of the parties or the subject matter. (Carpenter v. Hart, 5 Cal. 406.)
The purpose of the amendments of 1911 was to expedite the taking of appeals and the ending of litigation. Prior thereto the time of presenting and hearing of motions for new trials was to an extent a matter of discretion of the trial judge and largely under the control of the movant. Even then, however, this court held that a motion made after the time for appeal had passed was too late. (McCrea v. McGrew, 9 Idaho 382, 75 P. 67; Smith v. American Falls Canal Co. , 15 Idaho 89, 95 P. 1059; Wood v. Tanner, 15 Idaho 689, 99 P. 123, 1053.)
The time mentioned in these decisions within which a motion for a new trial must be made is the same as the time for the taking of an appeal, and for the same reasons that justified them that should be the rule now. (Minneapolis Threshing Machine Co. v. Fox (Utah), 172 P. 699.)
This is an original proceeding on an application for a writ of mandate to compel the Honorable William A. Babcock, as judge of the district court of the fourth judicial district for Twin Falls county, to pass upon the merits of a motion for a new trial, in a case tried in that court between this plaintiff and one H. M. Sims as defendant. On February 23, 1918, a final judgment was entered in favor of Sims. Thereafter, on March 2, 1918, plaintiff filed in said court a paper denominated "Notice of Motion for New Trial," which was in part as follows:
Another paper, denominated "Motion for a New Trial," bearing date of May 31, 1918, was filed on June 1, 1918, over the objection of defendant Sims.
No order was given for a transcript of the testimony. No extension of time for making or filing a motion for a new trial was obtained. No motion for a new trial, other than the paper denominated "Notice of Motion for New Trial," was served upon the defendant, or his attorneys, in connection with the notice, nor prior to May 31, 1918. No appeal was taken by the plaintiff from the judgment. It is apparent that more than ninety days had elapsed after the judgment had been entered before the formal motion for new trial was either served or filed.
On August 16, 1918, the time set for hearing the motion for a new trial, the defendant Sims presented objections to the consideration thereof. The court on August 26, 1918, entered the following order:
In the defendant's return to the alternative writ, he states that:
". . . . It was and is the opinion of this defendant that the judgment in question had become and is final, that said district court had lost jurisdiction of said case and had no legal right or power to entertain or pass upon a motion for a new trial thereof, or to set aside or vacate said judgment, for which reasons this defendant refused to consider said motion on its merits, but instead thereof made and caused to be entered the order . . . ." above recited.
The first question presented for determination is whether the "Notice of Motion for New Trial" complies with Rev. Codes, sec. 4441, as amended by chap. 118, Sess. Laws 1911, p. 377.
The code sections relating to this point, as amended by chap. 118, supra, are as follows:
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