Wayne v. Marquardt

• Decision Date: 05 March 1934
• Docket Number: 6063
• Citation: 30 P.2d 369,54 Idaho 211
• Court: Idaho Supreme Court
• Parties: JAMES A. WAYNE, as President of COEUR D'ALENES LEAD COMPANY; ROGER W. GREENOUGH, as Secretary and Treasurer of Said COEUR D'ALENES LEAD COMPANY, and Said COEUR D'ALENES LEAD COMPANY, a Corporation, Respondents, v. HERMAN MARQUARDT and WALTER H. HANSON, Appellants

30 P.2d 369

54 Idaho 211

JAMES A. WAYNE, as President of COEUR D'ALENES LEAD COMPANY; ROGER W. GREENOUGH, as Secretary and Treasurer of Said COEUR D'ALENES LEAD COMPANY, and Said COEUR D'ALENES LEAD COMPANY, a Corporation, Respondents, v. HERMAN MARQUARDT and WALTER H. HANSON, Appellants

No. 6063

Supreme Court of Idaho

March 5, 1934

NEW TRIAL-MOTION-NOTICE-TIME FOR.

1. Supreme court must affirm order denying motion for new trial where trial court was without jurisdiction of motion for lack of timely statutory notice (I. C. A., sec. 7-604).

2. District court's power to grant new trial is purely statutory, and court is without jurisdiction unless moving party complies with statute (I. C. A., sec. 7-604).

3. Where cause was tried without jury, ten days' statutory period for filing of notice for new trial began to run upon filing of court's findings of fact, conclusions of law and decree (I. C. A., sec. 7-604).

4. Where no notice of intention to move for new trial was filed or served, and motion was not made within ten days after notice of court's decision, in case tried without a jury trial court was without jurisdiction to grant new trial (I C. A., sec. 7-604).

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Appeal from an order denying motion for new trial. Order affirmed.

Order affirmed. Costs to respondents.

Walter H. Hanson and F. C. Keane, for Appellants.

Cite no authorities on points decided.

Gray &amp McNaughton and James A. Wayne, for Respondents.

The motion for a new trial herein was ineffectual for any purpose for the following reason:

1. It was not filed within ten days after the decision of the court. (I. C. A., sec. 7-604.)

And if notice of motion was not given within prescribed time, the lower court has no jurisdiction to grant new trial, and appeal should be dismissed. (Hess v. Swanson, 36 Idaho 135, 209 P. 721; Brockman v. Hall, 37 Idaho 564, 218 P. 188.)

The "decision" which starts the ten-day period mentioned in the statute, where the trial is without jury, consists of written findings of fact and conclusions of law filed with the clerk. (Forsman v. Holbrook, 47 Idaho 241, 274 P. 111.)

WERNETTE, J. Budge, C. J., and Givens, Morgan and Holden, JJ., concur.

OPINION

WERNETTE, J.

--This appeal is taken from an order of the district court denying appellant's motion for new trial. Respondents, in their brief, raise the question of the failure of appellants to file their notice of, or motion for new trial within the ten-day period provided by sec. 7-604, I. C. A., which, in part, reads as follows:

"The party intending to move for a new trial must, within ten 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 motion. . . . "

This action was tried to the district court sitting without a jury. The findings of fact, conclusions of law and decree of the district court were entered and filed January 27, 1933. Appellants did not file a notice of intention to move for a new trial, but did, on February 9, 1933, serve and file a motion for new trial. Thus neither a notice nor the motion was filed within the ten days provided by sec. 7-604, I. C. A.

This court is without discretion in the premises. The granting of a new trial by the district court is entirely a matter of statute and if the moving party had not complied with the provisions of the statute, as in this...