Todd v. Peterson

• Decision Date: 01 August 1905
• Citation: 13 Wyo. 513,81 P. 878
• Parties: TODD ET AL. v. PETERSON, AS ADMINISTRATOR, ETC
• Court: Wyoming Supreme Court

81 P. 878

13 Wyo. 513

TODD ET AL. v. PETERSON, AS ADMINISTRATOR, ETC

Supreme Court of Wyoming

August 1, 1905

ERROR to the District Court, Johnson County, HON. JOSEPH L. STOTTS Judge.

Heard on motion to strike the bill of exceptions from the files and dismiss the proceeding in error. The facts are stated in the opinion.

Cause dismissed.

E. E Enterline and Alvin T. Clark, for defendant in error, for the motion.

The filing of a motion for a new trial in the office of the clerk of court of Sheridan County was not a compliance with Section 3748, prescribing the time for filing such a motion, as the cause was not pending in that county. The District Court sitting in Johnson County had no authority to permit the motion for a new trial to be filed in that county as of the date when such motion had been filed in Sheridan County; and under no circumstances can a motion for a new trial be dated back. The statutes fixing the time for filing motions for new trial are mandatory; and such a motion cannot be filed after the time limited except by a showing of the applicant under the exceptions mentioned in the statute. (Kent v Upton, 3 Wyo. 43; McLaughlin v. Upton, id., 48; Casteel v. State, 9 Wyo. 267; Boswell v. Bliler id., 277.) The same principle has been applied in the Supreme Court with reference to the filing of briefs. (Cronkhite v. Bothwell, 3 Wyo. 739; Cook v. Bank, 79 P. 18.) It cannot be successfully urged that the plaintiffs in error were unavoidably prevented from filing their motion within the prescribed period. The motion itself as filed in Sheridan County laid the venue in Johnson County, and it is apparent that the filing of the motion in the wrong county was the result of negligence merely, and not of unavoidable casualty or misfortune.

William E. Sweeney, for plaintiffs in error, contra.

Plaintiffs in error had no legal notice of the rendition of the judgment, as shown by the affidavits on file. A motion for a new trial is unnecessary to give this court jurisdiction to review errors assigned in a cause which has been tried in the court below without a jury. Where the trial has been to the court without the intervention of a jury, the trial judge does not exercise merely a supervisory authority; his duty extends further than to see that the trial proceeds according to law--he is the judge of both the facts and the law. It must be assumed that he has heard all the evidence and considered the arguments of counsel. It must be assumed that the judgment rendered by him is his best conclusion on all the issues both of law and fact presented during the trial of the case. Upon a motion for a new trial there would be no argument not already made upon the trial, and it would seem a useless procedure to require such a motion to be made under those circumstances as a condition precedent to presenting the errors to an appellate court. The distinction between a trial to the court and before a jury with particular reference to the point under discussion is clearly drawn by the Supreme Court of Tennessee in the case of Lancaster's Heirs v. Fisher, 28 S.W. 1094.

POTTER, CHIEF JUSTICE. BEARD, J., and VAN ORSDEL, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This cause was submitted upon the motion of defendant in error to strike the bill of exceptions from the record and to dismiss the proceeding in error. The ground of the motion is that every question involved in the case could have been properly assigned as ground for a new trial in the court below, and that no such motion was filed within the time required by law.

It appears from the record in the cause that the defendant in error brought separate actions in the District Court in Johnson County against Hilda Todd and the Kingsbury-Todd Company, respectively, and that the said causes were consolidated for the purpose of trial by the order of the court upon the consent of all the parties, and were tried and determined on the same evidence, and taken under advisement by the court, on the 1st day of October, 1903. On March 29, 1904, an order was entered in open court, by and with the consent of the parties, providing, in substance and effect, that the judge of said court might decide said causes at chambers in Sheridan County (in the same judicial district), and that the judgment should be sent to the clerk of the court in Johnson County and by him entered of record the same as if the judge was present in that county; each party to have an exception thereto, and the judgment to have the same effect, and the rights of the parties to be the same, as if entered in term time with the judge present and presiding. The order also provided that, if any motions for a new trial should be filed by either or both parties after a determination of the consolidated causes, the same might be heard and determined by the judge at chambers, in Sheridan County, and an order therein sent to the clerk of the court in Johnson County to be entered of record; each party to have an exception thereto, and the said order to have the same force and effect as if entered in term time. The statute (Sec. 3612, R. S. 1899) authorizes any cause, action or matter that has been heard by the court or judge to be decided out of term and in such case requires the order or judgment to be filed and entered in the office of the clerk of the District Court of the county wherein the action or proceeding is pending. The consent order was doubtless based on that statute.

On August 15, 1904, the judge rendered his decision and judgment in writing, finding generally for the plaintiff and against the defendants, assessing the plaintiff's damages in the sum of $ 1,200 with interest, amounting in the aggregate to $ 1,355.72, and awarding to the plaintiff judgment against the defendants for that amount, together with costs. That judgment was filed with the clerk of the District Court of Johnson County, wherein the cause was pending on August 17, 1904, and entered as of its date, viz: August 15, 1904.

No motion for new trial was actually filed, or left for filing, in the court where the action was pending, and where the judgment had been rendered and filed, until September 7, 1904, more than ten days after the rendition and filing of the judgment. On that date a motion for new trial was filed with the clerk of said court. But the bill of exceptions discloses a similar motion bearing an endorsement showing its filing by the clerk of the District Court of Sheridan County on August 18, 1904, and also the endorsement of the clerk of the District Court of Johnson county showing its filing by him on the same date. The bill explains those endorsements in substance as follows: The motion was delivered to the clerk of the District Court of Sheridan County, and by him received and filed on the date mentioned. On September 7, 1904, the defendants filed a motion asking that the motion for new trial filed on that date be ordered filed as of August 18, 1904, for reasons set forth in the affidavit of one of the counsel for defendants. Briefly stated, those reasons were that the associate counsel, residing in Sheridan County, supposing the causes to have been transferred to that county for all purposes, had, on August 18, filed in the District Court of that county a motion for new trial of said causes, and had informed the deposing counsel, who resided in Johnson County, that the motion had been filed in due time, upon which information the latter counsel relied, and, therefore, took no steps to file a motion until September 7; and that he had no actual notice that the judgment had been filed with the clerk in Johnson County until after the expiration of the statutory period of ten days from the rendition of the judgment. A counter affidavit was filed by counsel for plaintiff in support of a motion resisting the motion for the nunc pro tunc order, showing that on August 17 the judgment was exhibited to deposing counsel for defendants, and that he was then informed that the same would at once be filed with the clerk, which was done on the same day.

On September 26, 1904, which we understand to have been a day of the subsequent term, the motion for new trial, as well as the accompanying motion for a nunc pro tunc order, came on for hearing, and the latter motion was sustained, the clerk being ordered to file the motion for new trial as of August 18, 1904, to which plaintiff excepted; and thereupon the clerk endorsed the motion previously filed in Sheridan County as filed in Johnson County on the last mentioned date. The motion for new trial was thereupon overruled and defendants excepted.

It is contended that the trial court was without power to order the filing of a motion for new trial nunc pro tunc, so as to give defendants, plaintiffs in error here, any standing in this court to complain of the rulings preserved by the bill of exceptions, for the reason that no such motion had in fact been filed in time. The statute provides: "The application for a new trial must be made at the term the verdict, report or decision is rendered; and, except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, shall be made within ten days after the verdict or decision is rendered, unless such party is unavoidably prevented from filing the same within such time." (R. S., Sec. 3748, as amended by Laws 1901, Ch. 66, Sec. 1.) The succeeding section (3749) provides that the application must be made by motion, upon written grounds, filed at the time of making the motion.

By a long line of decisions it has uniformly been held by this court that no ground of error will be considered which might properly have been assigned as a ground for a new...