Griffith v. Gruner

By the Court: We are of the opinion that, under the provisions of the Practice Act, prior to the adoption of the Code of Civil Procedure, either party could notice for argument a motion for new trial, and if the party opposing the new trial neglected [646]to bring on such motion, he waived his objection to any delay.

Treating the order appealed from in this case as an order denying a new trial, on the ground that the motion was not made at the earliest practicable period, the District Court erred in deciding that the moving party was alone responsible for the delay.

On the trial, the plaintiff offered to read in evidence the deposition of G. M'. Adams. The plaintiff had procured an order shortening the time of notice of the taking of such ■deposition to three days. The witness resided in San Francisco, as did also the attorney for the defendant. The notice was not served on the defendant’s attorneys, but was served on the defendant personally in El Dorado county, where the defendant lived. When the deposition was offered, the precise objection was made by defendant’s attorneys, that the notice was not served upon them. The Court below overruled the objection, to which defendant duly excepted. The objection should have been sustained, as by the Practice' Act all notices were required to be served on the attorney, where a party appeared by attorney, and we have repeatedly held that in such cases a service on the party personally is not sufficient.

Order appealed from reversed, and the Court below directed to grant a new trial. Bemittitur forthwith.