Owen v. Crocker-Huffman Land & Water Co.

CHIPMAN, P. J.

The action was commenced to recover damages for land overflowed by an alleged negligently eon

[650]

structed and maintained canal. The cause was tried by the court with a jury, and, on July 1, 1916, the jury rendered a verdict for plaintiff in the sum of $4,611. Judgment on the verdict was rendered on the same day and was recorded July 3, 1916. On July 7th, defendant duly served and filed its motion for a new trial. The motion came on to be heard, was argued and submitted and the court made the following order: “Motion for new trial having been heretofore argued and submitted, it is ordered that the said motion [be] and tire same is hereby granted, unless plaintiff consents to a reduction of the verdict, as follows, to wit: all in excess of twenty-one hundred fifty-one and 25/100 dollars and costs must be remitted by plaintiff to defendant or a new trial is granted.”

On September 19, 1916, the court made the following order: “It is-ordered that the order heretofore entered, to wit: on Sept. 18th, relative to motion for new trial in the above entitled action, be and the same is hereby changed and modified to correct a mistake arising through inadvertence incorrectly recalling the testimony of plaintiff and other witnesses, and that the following be and is the order of said court: That unless the plaintiff files his written acceptance in this court of a reduction of the judgment heretofore entered in said cause in the sum of forty-six hundred and eleven dollars ($4,611), and five hundred .and seventy-four and 05/100 ($574.05) dollars costs of suit, to the sum of twenty-seven hundred and eighty-eight ($2,788) dollars and five hundred seventy-four and 05/100 ($574.05) dollars costs of suit, the motion for a new trial be granted, and in the event of the filing of said written acceptance, it is ordered that said motion for a new trial be denied. ’ ’ i

The second order was made

ex parte

without notice to defendant, apparently on the court’s own motion. The first order was not consented to nor was it accepted by plaintiff, but, on September 19, 1916, plaintiff filed notice of his consent “in accordance with the order entered on motion for a new trial in said cause, on the nineteenth day of September, 1916.” It appeared that defendant had no intimation that the court contemplated making the second order until September 27, 1916, when “defendant was preparing the records for the appeal herein, on the last day allowed by law for giv