Bauer v. Merigan

[770]

SHEPARD, J.

This is an appeal by defendants from an order granting plaintiff’s motion for a new trial.

Facts

Judgment in the above ease was rendered September 7, 1960. Plaintiff served on opposing counsel and presented to the County Clerk for filing, on October 6, 1960, a notice of intention to move for a new trial. Nothing was said at that time about a filing fee. The original and a copy were stamped,

“Filed

Oct. 6,2:16 P.M. ’60 R. B. James, Clerk

by_D_

Deputy. ’ ’

The copy bearing the file stamp dated October 6,

1960,

was returned to plaintiff’s counsel. Later, a request for the filing fee was made and the fee apparently paid on October 10, 1960. The register of actions recorded a filing as of October 10, 1960. The file stamp on the document was called to the attention of a deputy and the register was by her corrected to show October 6, 1960. October 6, 1960, was within time; October 10, 1960, was not within time. The motion for a new trial was argued and granted November 25, 1960. On December 22, 1960, defendants appealed from that order.

Apparently the facts relating to date of filing of the notice of intention to move for a new trial were not then called to the attention of the trial court. January 5, 1961, defendants filed a motion to set aside the order granting a new trial on the ground that the notice of intention to move for a new trial was not filed within the time provided by law. By affidavit, the facts relative to the filing date and fee payment were developed. On January 26, 1961, the motion to set aside the order granting a new trial was denied.

Timely Filing

The sole question presented by this appeal is whether or not, under the facts stated, the trial court was authorized to find that the notice of intention to move for a new trial was filed within time.