Truitner v. Knight

TYLER, P. J.

Motion to dismiss appeal. The facts out of which the proceeding arises show that plaintiff, a minor of the age of twelve years, brought an action to recover damages against defendants for injuries suffered by her in an automobile accident.

The case came on regularly for trial before a jury. Plaintiff recovered a verdict in the sum of one thousand dollars. Thereafter defendant Truitner filed a certain notice in writing upon plaintiff which was expressly denominated in its heading as being “Notice of Intention to Move for New Trial.” The notice reads as follows: “You and each of you will please take notice that the defendant Clifford

[509]

Truitner intends to move the court in the above entitled action on the following grounds, to wit: 1—Irregularity in the proceedings of the court, jury and adverse parties, by which defendant was prevented from having a fair trial. 2—Misconduct of the jury. 3—Accident and surprise which ordinary prudence could mot have guarded against. 4— Newly discovered evidence, etc. 5—Excessive damages appearing to have been given under the influence of passion and prejudice. 6—Insufficiency of the evidence . . . 7—Errors in law ...”

The notice further recited that it would be based upon affidavit and also upon the minutes of the court. Indorsed upon the notice was an admission of service by the attorney for the respondent in words and figures following: “Due service of the within notice of intention to move for New Trial and receipt of a copy thereof acknowledged this the 26th day of February, 1926.”

It will be noted that the words “for a new trial” are omitted from the context of the body of the notice itself. The motion was denied by operation of law, and an appeal was regularly taken. The contention of respondent in support of the motion to dismiss the appeal is that no notice of intention to move for a new trial was ever filed by reason of the omission of the words “for a new trial” in the body of the notice, an omission, it is claimed, which has the effect of completely nullifying the notice. The main question here presented is whether or not the notice as given was sufficient to satisfy the statutory requirement. There can be no question that the attorney for respondent was not misled or deceived concerning the object of the notice, and in fact he admits that he was not. He insists, however, that notwithstanding-this fact, the statute demands a literal compliance with its terms, failing in which the notice is a mere idle act having no force or effect. In support of the motion we are cited by respondent to numerous cases involving the insufficiency of notices of appeal as being authority upon the question. No useful purpose would be subserved by a review or analysis of these decisions. It is sufficient to say with reference thereto that the; present no analogy to the instant proceeding. The precise question here involved has received consideration by our supreme court. In the case of