Vermont Farm Machine Co. v. Lamka

Main, J. — The purpose of this action was to recover the balance alleged to be due for goods, wares and merchandise sold and delivered. The defendant admitted the purchase and delivery, and pleaded affirmatively that it had been mu-tally agreed between the plaintiff, the defendant and one George E. Corsen, that Corsen would pay to the plaintiff the amount due, in the place of the defendant, and that the plaintiff would look to Corsen alone for the payment, and the defendant should be released from the obligation. The affirmative defense pleaded in the answer was denied by the reply. The issue thus framed was tried to a jury, and resulted in a verdict for the defendant. After the verdict was [623] returned, and before it was entered, the plaintiff interposed a motion for judgment notwithstanding the verdict. The verdict was returned and entered on the 30th day of January, 1913. Thereafter no further steps were taken in the cause until the 7th day of October, 1915, when the plaintiff made a motion for a new trial. The ground of this motion was that the notes of the court reporter, who had been employed by the plaintiff to report the case at the time of the trial, had been lost, and that, owing to the lapse of time, a bill of exceptions could not be prepared without the aid of the reporter’s notes. On the 8th day of November, 1915, the motion for a new trial and a motion for judgment notwithstanding the verdict were overruled by the trial court, and a judgment entered upon the verdict. From this judgment, the plaintiff appeals. Whether the facts upon which the motion for a new trial in this case are based are included within the statutory grounds for a new trial, and whether, if not so included, the court has any inherent power to grant a new trial for other than statutory grounds, are questions which are not properly here to be considered, and upon which no opinion will be expressed. No extension of time had been granted by the trial court in which a motion for a new trial could be made, and the motion for a new trial was made approximately two years and eight months after the verdict was returned and entered. The statute, Rem. Code, § 402, provides that the party moving for a new trial must, within two days after the verdict of a jury, file with the clerk, and serve upon the adverse party, his motion for a new trial, designating the grounds upon which it is made. There being no extension of time in which the motion for a new trial might be made, and the motion not being made within the statutory two days, it cannot be considered. The motion was made without authority of law, and therefore presents no question for determination. Grove v. Morris, 31 N. D. 8, 151 N. W. 779; Hedekin Land [624] & Improvement Co. v. Campbell (Ind.), 112 N. E. 97; Haviland v. Southern California Edison Co., 172 Cal. 601, 158 Pac. 328. The judgment will be affirmed. Ellis, C. J., Chadwick, Morris, and Webster, JJ., concur.