Yerrick v. District Court in and for Salt Lake County

• Decision Date: 25 July 1916
• Docket Number: 2894
• Citation: 48 Utah 619,161 P. 55
• Court: Utah Supreme Court
• Parties: YERRICK v. DISTRICT COURT IN AND FOR SALT LAKE COUNTY

161 P. 55

48 Utah 619

YERRICK v. DISTRICT COURT IN AND FOR SALT LAKE COUNTY

No. 2894

Supreme Court of Utah

July 25, 1916

Rehearing denied November 23, 1916.

Prohibition by Carrie A. Yerrick against the District Court in and for Salt Lake County, State of Utah. Writ denied, and proceedings dismissed.

Writ denied, and proceedings dismissed.

A. T Sanford for plaintiff.

Howat Macmillan & Nebeker and Stephens & Smith for defendant.

STRAUP C. J. McCARTY, J., concurs. FRICK, J., dissenting.

OPINION

STRAUP, C. J.

We are asked by prohibition to restrain the district court from proceeding to hear a motion for a new trial in the case of the Houston Real Estate Investment Company, Plaintiff, v. Hechler, Defendant, and Yerrick, Intervener. Upon a trial to the court and a jury a verdict was rendered against the investment company and in favor of Yerrick for $ 4,682. The case to the rendition of the verdict was treated by the parties as triable by jury. Then the investment company claimed the case one in equity, urged the court to regard the verdict as merely advisory, and proposed and requested findings on all the issues. The court, so regarding the verdict, refused to recognize it, made findings at variance with it, and upon the findings rendered and entered judgment in favor of the investment company. From that judgment Yerrick appealed. The ruling of the court so disregarding the verdict and so making findings was the only point presented by the appeal. On the record nothing further could have been reviewed. We held the court erred in such particulars and remanded the cause, with directions to enter a judgment on the verdict. 47 Utah 215, 152 P. 726. On remittitur judgment accordingly was so entered. Within five days thereafter the investment company served and filed a notice of motion for a new trial. Yerrick moved to strike the notice. That motion was overruled. This proceeding then was instituted by Yerrick to restrain the court from further proceeding with the motion for a new trial.

The contention is, that the court then was without jurisdiction to entertain such a motion. This is because of the statute (C. L. 1907, section 3294), requiring a party intending to move for a new trial to serve and file a notice thereof within five days after verdict. The notice, of course, was long after the rendition of the verdict. Ordinarily a party intending to move for a new trial is required to serve and file a notice within five days after verdict. But that is on the assumption of an operative verdict and one recognized as such and acted upon. Here the court wholly disregarded the verdict, and set it aside, and himself made findings. There was no longer any verdict left to move against. Judgment was entered on the findings, not the verdict. Those were in favor of the investment company. It was content with that. Vain indeed would it have been had the investment company moved against a verdict already annihilated and set aside, and had asked for a new trial of the cause against findings made and judgment entered in its favor. Until the verdict was restored the investment company had no grievance and nothing to move against. All we did on the appeal was to restore the verdict and to direct judgment to be entered upon it. The cause thus was left just where it would have been had the court at the first instance done what we, on the appeal, directed to be done. To deny the investment company thereafter to move against the verdict and to apply for a new trial is in effect to deny it such right altogether. Under the circumstances we think the district court has jurisdiction to entertain the motion. Severy v. Chicago R. I. & P. Ry. Co., 6 Okla. 153; 50 P. 162; Kansas, Ft. S. & M. R. Co. v. Berry, 55 Kan. 186, 40 P. 288. The situation in the Kansas case is very similar to the situation here. There a general and special verdict was rendered in favor of the plaintiff Berry for $ 5,000. The trial court refused to receive or recognize the verdicts, but permitted them to be filed (52 Kan. 759, 34 P. 805, 39 Am. St. Rep. 371), and then, on the defendant's motion, notwithstanding the general and special verdicts in favor of the plaintiff, directed a verdict in favor of the defendant, the railway company, upon which judgment was rendered and entered. Here the court, notwithstanding the verdict determining the whole of the issue in favor of Yerrick, treated it merely as advisory, refused to recognize it or act upon it, made findings at variance with it, and entered judgment upon them in favor of the investment company. There, as here, the appellate court directed judgment to be entered on the verdict as rendered. There, as here, a motion for a new trial was made within the statutory period, not after the rendition of the verdict, but after the entry of the judgment in obedience to the mandate of the appellate court. There, as here, the claim was made that the motion came too late, and that the court was without jurisdiction to entertain it. Said that court:

"The defendant, having a verdict in its favor, and a judgment thereon, not only was not called on to file a motion for a new trial, but that there was absolutely no foundation for any such motion. It is further insisted that vitality was first given to the verdict by the order and judgment of this court, and that not until its mandate was presented to the district court did the verdict of the jury have any force as a verdict; that the defendant was then, for the first time, called upon to challenge its correctness or the proceedings of the court at the trial. These views impress us as sound. The defendant was under no obligation to recognize a verdict as valid which the court refused to receive or act upon. This court held that the district court erred in refusing to receive the special findings and the general verdict in favor of defendant (plaintiff), and in refusing to treat them as verdicts, and directed that they should be so received and treated. We think the defendant then had a right to file a motion for a new trial within the statutory time after the mandate of this court was presented; that it was then the duty of the court to pass on the motion for a new trial; and that, on such motion being overruled, the defendant had a right to make a case, and present to this court any errors occurring at the trial. If this were not so, the defendant would be utterly without remedy, no matter how many or serious the errors of law occurring at the trial might have been."

These reasons and conclusions, we think, are applicable here. Let the writ therefore be denied, and the proceedings dismissed at petitioner's costs. Such is the order.

McCARTY, J., concurs.

DISSENT BY: FRICK

FRICK J. (dissenting).

I am unable to assent to the conclusion reached by the Chief Justice. I shall therefore, as briefly as possible, state the reasons that have impelled me to arrive at a contrary conclusion.

This case has already been before us twice. Investment Co. v. Hechler, 44 Utah 64, 138 P. 1159, and again under the same title in 47 Utah 215, 152 P. 726. The questions in controversy in his proceeding, however, all arose with respect to the proceedings at the last trial of the case. As stated by the Chief Justice, the parties tried the case as a law case, but upon the verdict being returned against the plaintiff in former action, hereafter called company, it moved the district court to treat the action as purely equitable and to declare the verdict as advisory merely, and that the court make its own findings of fact, conclusions of law, and enter judgment in accordance therewith, notwithstanding the verdict of the jury. The district court entertained the motion and made findings of fact and conclusions of law in many respects contrary to the verdict of the jury, and entered judgment thereon in favor of the company. The defendant in that action, being the plaintiff here, and who hereafter will be styled plaintiff, brought the case to this court on appeal (47 Utah 215, 152 P. 726), where we held that the parties having tried the case as a law case up to the time the verdict was returned neither one could thereafter insist that it was not bound by the verdict of the jury upon questions of fact to the same extent that such would be the case in law cases generally, subject only to the remedies applicable to such cases. We therefore reversed the rulings and judgment of the district court, and directed that court to enter judgment upon the verdict of the jury in favor of the plaintiff, which was accordingly done. After judgment, pursuant to the remittitur from this court, had been entered, however, the company, within the five days allowed by our statute, filed a motion for a new trial upon the usual grounds provided by Comp. Laws 1907, section 3292. The plaintiff objected to the motion and moved to strike it upon various grounds, including the one that it was filed too late, and that the court was without jurisdiction to entertain such a motion after the judgment had been reversed. The district court overruled plaintiff's motion to strike, and hence this proceeding.

The Chief Justice has arrived at the conclusion that the motion for a new trial, under the circumstances of this case, was filed within proper time, and that, therefore, the district court has the power to pass upon it and to dispose of it in the ordinary way. In my judgment that conclusion is erroneous. In some jurisdictions motions for new trials are required to be filed after judgment, and in such jurisdictions such motions assail the judgment as well as the regularity of the proceeding, including the decision or verdict. Under our statute, however, as well as under the statutes of other states, notably, California, Indiana and...