Buckle v. McConaghy

SULLIVAN, J. — This is an appeal from an order granting a new trial, which order was based on the insufficiency of the evidence to justify the verdict. It appears from the record before us that the order granting a new trial was made in open court on the fifteenth day of. May, 1905, and that the [534] statement on motion for a new trial was not settled until the thirty-first day of May, 1905, and not filed until the first day of June, 1905. Counsel for the appellant contends that the court had no jurisdiction to act upon said motion until after the settlement and filing of the statement to be used on that motion. Section 4442 of the Revised Statutes is in part as follows: ‘ ‘ The application for a new trial shall be heard at the earliest practicable period after notice of the motion, if the motion is to be heard upon the minutes of the court, and in other cases, after the affidavits, bills of exceptions, or statement, as the case may be, are filed, and may be brought to a hearing upon motion of either party.” Those provisions clearly contemplate that the hearing of the motion for a new trial based upon a statement of the case must not be heard until after such statement is settled and filed. In Stevens v. Northwestern Stage Co., 1 Idaho, 604, the supreme court of this territory said: “Again, it appears that the statement was not settled until after the decision of the court upon the motion, for the order of the court granting a new trial and the plaintiff’s exceptions thereto are incorporated into and form a part of the statement itself. This- practice cannot be too strongly condemned. The whole theory of the use of a statement is that the court may have something definite and certain upon which to act. Any other practice would lead to great confusion, giving rise to controversies as to what state of facts the court had acted upon after the very questions in issue had been decided.” The provision of the statute requiring the settlement and filing of the statement on motion for a new trial before the court or judge can decide such motion is mandatory. (See 2 Spelling on New Trials, sec. 425.) In this case the order granting a new trial was made in open court on the 15th of May, and the statement was not settled until the 31st of May following, and was not filed until the 1st of June, 1905. Said order granting a new trial was therefore prematurely made [535] and must be set aside, and it is so ordered, and the cause remanded. Costs of the appeal are awarded to the appellant. (December 30, 1905.) Ailshie, J., concurs.