Wayland v. Woolley
| Decision Date | 07 February 1923 |
| Docket Number | 3911 |
| Citation | 213 P. 200,61 Utah 287 |
| Court | Utah Supreme Court |
| Parties | WAYLAND et al. v. WOOLLEY, District Judge |
Original application by A. E. Wayland and another for a writ of mandate requiring Dilworth Woolley, as Judge of the District Court of San Juan County, to reinstate, hear, and determine motion for new trial.
Peremptory writ granted.
Patterson & Constantine, of Moab, for plaintiffs.
F. B Hammond, of Monticello, for defendant.
On September 3, 1921, Hon. Dilworth Woolley, judge of the district court of San Juan county, in an action tried before him without a jury, wherein Ben Beh was plaintiff and A. E. Wayland and B. D. Harshberger were defendants, orally announced that he would find the issues in favor of the plaintiff. On September 14, 1921, the plaintiff's attorney prepared forms of findings of fact, conclusions of law, and judgment, and sent the same to the judge who tried the action to be signed. At the same time the plaintiff's attorney, mailed to the defendants' attorneys copies of the proposed findings, etc., and the following notice:
"Attached hereto please find copies of findings of fact, conclusions of law, and judgment, prepared in the above-entitled action in accordance with the oral decision of Judge Dilworth Woolley, rendered on the 3d day of September, 1921."
On September 23, 1921, the findings of fact, conclusions, and judgment were signed by the trial judge, and on September 27, 1921, were filed with the clerk. On September 27, 1921, the plaintiff's attorney mailed to defendants' attorneys the following letter and notice:
On February 28, 1922, defendants served and filed their notice of intention to move for a new trial. On August 17, 1922, plaintiff filed his motion to strike from the files the defendants' motion for a new trial. Subsequently the motion to strike was heard, at which time it was made to appear by oral evidence, stipulations, and affidavits that defendants' attorneys had personally examined the files in the action and had actual knowledge of the filing of the decision and had tendered a proposed bill of exceptions to plaintiff's attorney (but which was not agreed to or filed in the action), all more than five days before the filing of the notice of motion for a new trial.
The trial court sustained plaintiff's motion and struck the motion for a new trial from the files and declines to hear and determine the same.
The defendants in that action, plaintiffs here, have in this proceeding applied for a writ of mandate requiring the defendant, as judge of the district court of San Juan county, to reinstate, hear and determine the motion for a new trial. An alternative writ was issued and the defendant appeared and moved to quash the writ and dismiss the proceeding. Two questions are here presented for consideration, viz.: (1) Was notice of the decision in the original action given defendants so as to limit the time for filing notice of motion for new trial to five days? and (2) Did defendants waive that notice?
Comp. Laws Utah 1917, § 6980, provides as follows:
"The party intending to move for a new trial must within five days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk, and serve upon the adverse party a notice of his intention,...
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