Cole v. Wilcox

California Supreme Court Sep 12, 1893 No. No. 19168Published

Before: Harrison

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Holding. The court held that a trial court has the discretion to relieve a party from a failure to timely file a statement for a new trial due to mistake or inadvertence, and that the appellate court will not interfere with a trial court's decision to grant a new trial absent an abuse of discretion.

Issues

Whether the trial court had the power to relieve the plaintiff from the consequences of a mistake regarding the time to file a statement for a new trial.
Whether the trial court's decision to grant a new trial based on the evidence was an abuse of discretion.

Disposition. affirmed

Quotations verified verbatim against the opinion

“If the failure of the plaintiff to procure the additional time was the result of an excusable neglect or mistake, the court had the power to relieve him from the effect thereof”

“The action of the trial court in granting a new trial, for the reason that the former verdict or decision was not supported by the evidence, is so much a matter of discretion, that unless it appears that there was an abuse of that discretion”

Synopsis

New Trial—Statement—Extension of Time—Belief fob Mistake or Excusable Neglect—Discretion.—Where the failure of a party to procure additional time in which to prepare and serve his proposed statement on motion for a new trial is the result of excusable neglect or mistake, the court has power to relieve him from the effect thereof; and whether it is the result of such mistake or excusable neglect is to be determined in the exercise of its discretion by the court to which the application is made.

Id.—Statement not Embodying Grounds of Objection.—Where a statement on motion for a new trial, as settled and allowed by the judge, recited therein that it was “duly prepared and settled within due time and in the manner required by law,” and also that the “defendant objected to settlement of statement upon the ground that the same was not served in time,” but it failed to point out the basis or grounds of the objection or to present the facts upon which it was made, an objection to the hearing of the motion for a new trial, upon the ground that the proposed statement had not been served in time, is properly overruled.

Id.—Hearing of Motion—Consideration of Court Limited to Statement.— Upon the hearing of a motion for a new trial the court is limited in its consideration to the matters contained in the statement on motion for a new trial, and is not at liberty to go outside of the statement for the purpose of determining whether the new trial should be granted or refused.

Id. — Order Granting New Triad—Insufficiency of Evidence—Discretion. —The granting of a new trial upon the ground that the former verdict or decision was not supported by the evidence is within the discretion of the trial court, and unless it appears that there has been an abuse of that discretion the action of the trial court will not be reversed.

Harrison, J. This action was brought to recover damages for the alleged diversion of water from a canyon onto the plaintiff’s land, through an artificial channel constructed by the defendant’s testator. The cause was tried by a jury, which rendered a verdict in favor of the defendant. A motion of the plaintiff far a new trial upon the ground, among others, that the verdict was contrary to the evidence, was granted by the court, and from this order the defendant has appealed.

The plaintiff gave notice of his intention to move for a new trial March 17, 1892, and on the twenty-first day of March obtained from the court ten days time, in addition to the time allowed by law, in which to prepare and serve his proposed statement of the case. On the 29th of March he went to the court for the purpose of procuring additional time in which to prepare the statement, and the application which he made was granted, but the order that was entered by the clerk was for a stay of execution, instead of giving him further time to prepare his statement, and he did not discover this fact until about April 4th, on which day hei gave notice that he would make an application to the court for further time; and on the eleventh day of April, in pursuance oí this application, the court made an order reciting that: “It appeáring to the court that through [551]mistake and inadvertence the plaintiff, upon the twenty-ninth day of March, 1892, applied to this court to procure an order for a stay of execution herein for ten days from, that date; that it was his intention, when ho came into court, to make an application to the court for ten days time to prepare, serve, and file affidavits and statement on motion for a new trial, and that he supposed that he had made such application, and that such ozxler had been gz’auted, and so informed his counsel, and that through said mistake the time for filing said statement was by him permitted to expire, the same mistake not having been discovered until after said expiration, it is therefore ordered that the plaintiff be and is hereby relieved from said mistake and inadvertence, and is given two days from this date, thirteen days from the thirty-first day of March, 1892, to prepare and serve and file the said statement.”

1. If the failure of the plaintiff to procure the additional time was the result of an excusable neglect or mistake, the court had the power to relieve him from the effect thereof (Stonesifer v. Kilburn, 94 Cal. 33), and whether it was the result of such mistake or excusable neglect was to be determined in the exercise of its discretion by the court to which the application was made. The facts stated in the order must be accepted by us as having been fully shown to the court by competent evidence, and upon these facts it must be conceded that the court acted in the exercise of a wise discretion in making the order,

Cole v. Wilcox

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