Polhemus v. Carpenter

By the Court, Crockett, J.: The first question for determination is, whether the defendant’s notice of his intention to move for a new trial was served and filed in time. On the second of January the Court (which tried the cause without a jury) announced its decision, ordering a judgment to be entered for the defendant; and on the fourth of January the defendant was duly served with a notice of this decision. But when the cause was submitted, the defendant, in due form, requested written findings, which request was entered on the minutes. On the fourteenth of February the Court filed written findings, and within ten days thereafter the defendant filed and served a notice of his intention to move for a new trial. The statement in support of the motion was filed and served on the seventh of March, and within the time granted by the Court for that purpose.

On these facts, the plaintiff insists that the motion for a new trial came too late; that the ten days for serving and filing the notice commenced to run from the fourth of January, when the defendant was notified of the decision, and not from the fourteenth of February, when the written findings were filed.

Section one hundred and eighty of the code requires the Court to file written findings on the request of either party, entered in the minutes at the submission of the cause, and if the Court neglects or refuses to comply with the request, this will be ground of error, on an appeal from judgment, supported by a bill of exceptions or statement on appeal, embodying the necessary facts.

Section one hundred and ninety-five of the code provides that if the cause is tried by the Court without a jury, a party intending to move for a new trial shall file and serve a notice of his intention to do so within ten days after service of a notice of the filing of the findings, if any written find[383]ings be filed; and if there be no written findings, then within ten days after receiving a written notice of the decision of the Court.

There is nothing to prevent the Court from filing written findings, even though neither party requests the findings to be in writing; nor is there any provision defining or limiting the time within which written findings shall or may be filed. The question under consideration is not free from grave embarrassments, arising from the vague provisions of these two sections; and particularly from the omission of any limitation as to the time within which written findings shall be filed. It is quite plain, however, if there be no request for written findings, and none be filed when the decision is announced, the time within which a party intending to move for a new trial must file and serve a notice of his intention to do so will commence to run from the time when he is served with a written notice of the decision. The Court, it is true, may, at some future day, file written findings, but is under no obligations to do so, and non constat, that it ever will. In such a case, after receiving a notice of the decision, the party intending to move for a new trial would not be allowed to remain inactive for three or six months, speculating on the chance of the filing of written findings by the Court, and if such findings should, perchance, be filed, then proceed with his motion and excuse his delay on the ground that the statute allows him to proceed within ten days after notice of the filing of the written findings. If the statute should be so construed, the successful party would never know when the litigation was ended, as it would be wholly uncertain whether or not the Court would at any time file written findings. Such a practice, if tolerated, would lead to the greatest delay, vexation, and uncertainty in the administration of justice. The only proper and reasonable construction of the statute is, that'when written findings are not requested, and none are filed at the time of the decision, the