Bear River & Auburn Water & Mining Co. v. Boles

By the Court, Sawyer, J. This is an appeal from an order granting a new trial. The verdict was returned and judgment thereon entered on the 21st of April, 1862. On the next day, April 22d, an order was entered in the minutes of the Court in these words :

“ Now come the defendants herein, by Hamilton & Williams, their attorneys, in open Court, and give notice of a motion for a new trial upon statement to be hereinafter filed, and on motion of counsel aforesaid it is ordered that all proceedings under the judgment recovered by plaintiff against defendants be and they are hereby stayed and superseded until the 5th day of May next, in order that counsel may present and prepare his statement on motion for new trial.”

On the 4th day of May, defendant’s counsel asked the Court for three days further time to prepare and file their statement, and it was “ ordered that said motion be and the same is hereby granted; and that defendants’ attorneys be and they are hereby allowed three days from the date hereof in which to file said statement.”

The appellant assigns as error the granting of a new trial, on the grounds, among others, that a new trial was waived, because:

Firstly—No notice of a motion for new trial was given to appellants.

Secondly—No statement was filed within the time required by law.

Section one hundred and ninety-five of the Practice Act expressly provides that “ the party intending to move for a [356]new trial shall give notice of the same as follows: When the action has been tried with a jury, within five days after the rendition of the verdict.” It then provides for filing affidavits or statement within five days after giving such notice, etc., and “ if no affidavit or statement be filed within five days after notice, or within such farther time as the parties may agree upon, or the Court or Judge thereof may by order grant, the right to move for a new trial shall de deemed waived.”

The only notice of the motion for a new trial given, is that which appears in the minutes of the Court, just quoted. We do not think this sufficient. The entry was made on the next day after the verdict was rendered and judgment thereon entered. It does not appear that the party to be affected by it, or his attorney, was in Court, or had any knowledge of this proceeding. The case had been disposed of and judgment entered in plaintiff’s favor on the preceding day, and that was the end of the matter as to him till some other proceedings should be taken of which he was entitled to notice. After the entry of his judgment, the plaintiff was not bound to watch the Court to see whether or not any other proceedings would be taken. The law provides that notice of a motion for a new trial shall be given, and the notice intended is a written notice. Perhaps a notice given him in open Court, and entered in the minutes, in his presence, would be sufficient; but, in such case, the record should at least affirmatively show, with reasonable certainty, that the party was present, and actually had notice. As the record notice in this case is fatally defective in this particular, it is unnecessary to determine the question whether any notice thus given would be sufficient. At best it is a doubtful question. The only safe mode to pursue, especially since the amendment to section one hundred and ninety-five, in 1863, requiring the grounds of the motion to be stated in the notice, is to give a formal notice in writing. A written notice, even where another form is admissible, is less liable to lead to mistakes, and is always preferable.