Watson v. Mayberry

• Citation: 15 Utah 265,49 P. 479
• Decision Date: 16 June 1897
• Docket Number: 785
• Court: Utah Supreme Court
• Parties: HARRIET ANN WATSON AND DAVID KAY, RESPONDENTS, v. ANDREW P. MAYBERRY, APPELLANT

49 P. 479

15 Utah 265

HARRIET ANN WATSON AND DAVID KAY, RESPONDENTS, v. ANDREW P. MAYBERRY, APPELLANT

No. 785

Supreme Court of Utah

June 16, 1897

Appeal from the Third district court, Salt Lake county. Hon. M. L Ritchie, Judge.

Action by Harriet Ann Watson and David Kay against Andrew P Mayberry, Judgment for plaintiffs. Defendant appeals.

Affirmed.

Bennett Harkness, Howat & Bradley, for appellant.

Charles C. Dey and S. H. Lewis, for respondents.

An order overruling a motion for a new trial is not appealable. North Point Irrigation Co. v. Canal Co., 14 Utah 155; Eastman v. Gurrey, 14 Utah 169; Young v. Shellenberger, 41 N.E. 519; Holdsworth v. State, 18 N.E. 430; Kearney v. Snodgrass, 7 P. 309; Roberts v. State, 3 Tex. App. 47; Ziter v. Jones, 48 Md. 116; Sams v. Hoover, 33 S. Car. 401; State v. Davenport, 38 S.C. 349; Mayor v. Schemerhorn, 1 N.Y. 423; Laber v. Cooper, (U.S.) 7 Wall. 565; Ry. Co. v. Heck, 102 U.S. 120; Ayers v. Watson, 137 U.S. 584; Smith v. Sun Print. Co., 55 F. 240; McClellan v. Pyeatt, 50 F. 686; Alexandria v. Stabler, 50 F. 689.

The evidence cannot be reviewed upon the appeal from the judgment because that appeal was not taken within sixty days from the rendition of the judgment. Comp. Laws Utah, 1888, sec. 3635, par. 1; Hanks v. Matthews, 8 Utah 181; Jones v. Ins. Co., 14 Utah 215; Mogk v. Peterson, 75 Cal. 496; Turner v. Reynolds, 81 Cal. 214; Clark v. Gridley, 49 Cal. 104; Handley v. Figg, 58 Cal. 578; Formi v. Yoell, 99 Cal. 173; Bettis v. Townsend, 61 Cal. 333; Curran v. Kennedy, 89 Cal. 98; Weyl v. Ry. Co., 69 Cal. 203; Tillman v. Averett, 82 Cal. 576; Scott v. Glenn, 98 Cal. 168; Domingues v. Mascotti, 74 Cal. 269; Greenwood v. Adams, 80 Cal. 75; Painter v. Painter, 113 Cal. 371; Fatjo v. Swasey, 111 Cal. 628.

ZANE, C. J. HART, District Judge, concurs. MINER, J., dissenting.

OPINION

ZANE, C. J.:

The defendant applied to the United States for a patent of the Harrison mining claim, situated in West Mountain mining district, in Salt Lake county; and the plaintiffs protested, and filed an adverse claim to a part of the same ground, which they alleged was included in the Diana mining claim, owned by them; and they filed a complaint in the district court on the 28th of July, 1891, in which they alleged the facts relied upon to establish their rights. The defendant filed an answer, in which he denied the essential allegations of the complaint, and set up the facts upon which he relied to establish his title. On the trial of the case, all the essential facts in issue were found by the court for the defendant, except the issue as to the discovery point of the Harrison claim. The court found the issue as to that fact for the plaintiffs,--that the discovery point of the Harrison was within the Red Rover claim. On September 30, 1896, the court rendered judgment for the plaintiffs on the findings. The defendant, in due time, entered a motion for a new trial on a statement of the case; and on December 30, 1896, the court overruled the motion, and on January 4, 1897, the defendant perfected his appeal from the judgment against him, and from the order overruling his motion for a new trial. The plaintiffs move the court to dismiss the appeal from the order overruling the motion for a new trial, because they claim that no appeal lies from such an order.

Section 3635, Comp. Laws Utah 1888, authorized appeals from numerous judgments and orders that were not final, as well as from final judgments; and section 2 of article 24 of the state constitution contains this language: "All laws of the territory of Utah, now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are altered or repealed by the legislature." So much of the statute of the territory referred to as authorizes appeals from judgments and orders not final was repugnant to section 9 of article 8 of the same constitution, which limits appeals to such judgments as are final. The framers of that instrument doubtless believed such a rule would be conducive to speedy and complete justice. This rule was announced in North Point Consol. Irr. Co. v. Utah & Salt Lake Canal Co., 14 Utah 155, 46 P. 824.

We will now consider whether a judgment on a verdict or on the finding of the court is final when rendered, for the purposes of an appeal, when the motion is filed and notice of intention is served in due time, or whether such judgment does become final for such purposes before the motion is overruled. In other words, the question is: Must the appeal in such case be taken within one year from the rendition of the judgment, or within sixty days from its rendition, when the exception is to the decision or the verdict, on the ground that it is not supported by the evidence, or within one year in the one case, or sixty days in the other, from the date of the order overruling the motion? Statutes providing for appeals are remedial, and they should be liberally construed, in furtherance of the remedy. Brown v. Evans, 8 Sawy. 502, 18 F. 56; Rutherford v. Insurance Co., 1 McCrary's Cir. Ct. Rpts 120, 1 F. 456; Telegraph Co. v. Eyser, 86 U.S. 419, 19 Wall. 419, 22 L.Ed. 43.

A judgment terminating the litigation between the parties in the court rendering it is final. The litigation is not terminated while a motion for a new trial, made within the time given by law, may be lawfully decided. Until the order granting or overruling the motion is made, it cannot be known that the judgment is final. If the motion is allowed, the litigation may continue. If it is overruled, the litigation is terminated, and the judgment then becomes final. At common law, a motion for a new trial must be made before judgment is entered; but the statutes of this state require the judgment to be entered upon the verdict within 24 hours after it is returned, unless the court orders the case to be reserved for further consideration, or grants a stay of proceedings. Under the laws of this state, motions for a new trial in criminal cases must be applied for before judgment, as at common law; but in civil cases notice of intention to move for a new trial must be served on the opposite party, and filed with the clerk, within 10 days after verdict, or, when the trial is by court or referee, within 10 days after notice of the decision. The provisions requiring the entry of judgment immediately upon the return of the verdict, or upon the findings of the court, was enacted to secure the benefit of the judgment to the successful party, to enable a lien to be secured on defendant's property without delay. The purpose was not to prevent a review of the action of the trial court in the appellate court within a reasonable time after judgment, or after an order overruling a motion for a new trial. Divisions 1 and 2, § 3635, Comp. Laws Utah 1888, provided for appeals from final judgments, and from orders granting or refusing new trials and from any special order made after final judgment, and from various interlocutory judgments and orders.

On appeal from final judgments, exceptions to the decision or verdict on the ground that it is not supported by the evidence cannot be reviewed unless upon appeal taken within 60 days after the rendition of the judgment. But the same section gives 60 days within which to appeal from orders granting or overruling motions for new trials, and the same time for appeals from various other orders and judgments mentioned in it. As we have said, the constitution continued in force such provisions of the statutes of the territory as were not repugnant to it. That instrument only allows appeals from final judgments; but the same exceptions may be taken, and the same errors assigned thereon, under the constitution, as could have been taken and assigned under the territorial government, with a few exceptions. While the appeal is from the final judgment, all the rulings and orders of the court that could be reviewed before upon various appeals may now be reviewed upon appeal from a final judgment, with the exception of errors in granting new trials, in refusing preliminary injunctions, as possibly some others. The party appealing must file his motion for a new trial, if he wishes to make one, with the clerk, and serve on the opposite party notice of his intention, within 10 days after verdict, or, in case of trial by the court or referee, within 10 days after notice of decision, or his right is lost. If the moving party desires a bill of exceptions or a statement, he may within the same time, or such further time as the court may allow, present it to the court, and have it settled. The opposite party has the same right to insist upon an early hearing of the motion made as the moving party has, and, if so insisted upon, no unnecessary delay, without the fault of the court, can result. A party to an action should not be required to appeal for the purpose of having the appellate court review the action of the trial court in overruling a motion for a new trial until the ruling is made. Until that time, the parties cannot know whether the motion will be granted or denied. If granted, that order cannot be reviewed. If it is not granted, the court, in deciding the motion, may convince both parties that the ruling is not erroneous, or he may remit a portion of the verdict or finding, or some modification of the judgment may be made, rendering an appeal unnecessary, in their opinion. A party should not be compelled to appeal to have an order reviewed until he knows what the order is, or until there is an order to be reviewed and reversed or affirmed. The judge cannot tell what his ruling will be upon a motion until he considers it; much less can the parties know.

If the errors in overruling a motion for a new trial...