Thorne v. Finn

Thornton, J. In Savings and Loam, Society v. Thorne et al., after the decision of the court was duly rendered in favor of plaintiff, and an order for judgment in favor of plaintiff entered on the minutes of the court, which was done on the thirty-first day of March, 1882, the defendants on the 3d of April, 1882, served and filed their notice of intention to move for a new trial. Subsequently, a statement on said motion was prepared by defendants and served on plaintiff, to which plaintiff proposed amendments. These amendments were served on defendants. In the month of June, 1883, the plaintiff and defendants, by their respective attorneys, agreed to to the statement. The statement they agreed on was afterward, on the 18th of February, 1885, presented to the Hon. J. M. Allen, the judge of the Superior Court before whom the cause was tried, and by him was certified and allowed as correct. On a subsequent day the motion was regularly called for hearing in said court, and was on the 6th of March, 1885, denied on the ground of “laches, failure, and lack of diligence in the prosecution thereof.”

The findings in the cause above entitled were filed on the 20th of October, 1882. No notice of this decision was ever served on defendants. Subsequently to the denial of the above motion, the defendants served and filed another notice of motion to move for a new trial, proposed a statement on said motion, and served the same on plaintiff’s attorneys. To this statement plaintiff proposed amendments, at the same time reserved objections to this statement, and to the notice of intention [253]to move for a new trial, just above mentioned. These objections were as follows:—

“ 1. That there is no motion for a new trial pending herein,—the record herein showing that defendants gave notice of motion for a new trial on the third day of April, 1882, and thereafter proposed, and caused to be settled and filed herein, their statement on said motion for a new trial; and that thereafter, on the sixth day of March, 1885, the said motion (of April 3, 1882) for a new trial, was regularly denied by this court, and that the alleged motion for a new trial, made upon the sixteenth day of March, 1885, and upon which the present proposed statement of the defendants rests and is founded, was and is wholly void and ineffectual and inoperative.

“ 2. That the said alleged motion for a new trial, of which notice was given and filed March 16, 1885, was made, and notice thereof given and filed too late,—being about two and a half years subsequent to the decision herein rendered.