Steve v. Bonners Ferry Lumber Co.

AILSHIE, C. J. The respondent has moved to strike from the transcript in this case the statement on motion for a new trial, the notice of intention to move for a new trial, motion for judgment non obstante veredicto, and two orders extending time for the preparation of the statement, and also moves for a dismissal of the appeal taken from the order denying a motion for a new trial, and from the order denying a motion for' judgment non obstante veredicto. These motions are based on several grounds which we will consider in their order. It is well enough to note, in the first place, that counsel for appellant admit that the notice of intention to move for a new trial and the two orders extending time for preparation and service of statement on motion for a new trial, and the motion for judgment non obstante veredicto, are not properly included in the transcript, and should be stricken therefrom. The notice of intention to move for a new trial was not incorporated in the statement, and for that' reason it has not been properly included in the transcript. Counsel for respondent contends that the record on appeal must show that notice of [389] intention to move for a new trial was given, and that the same should be incorporated in the statement on motion for a new trial, and that the absence of the same from the statement is fatal to the appeal from the order denying the motion.- In support of this contention respondent cites Raymond v. Thexton, 7 Mont. 299, 17 Pac. 258; Gum v. Murry, 6 Mont. 10, 9 Pac. 447; Morse v. Boyde, 11 Mont. 247, 28 Pac. 260; Harrigan v. Lynch, 21 Mont. 36, 52 Pac. 642. All of these cases are from Montana. In Carr, Ryder & Adams Co. v. Closser, 27 Mont. 94, 69 Pac. 561, the Montana court considered these earlier eases and indicated a very strong desire to depart from the earlier holding of the court. In King v. Pony Gold Min. Co., 28 Mont. 74, 72 Pac. 309, they accordingly overruled the former decision and followed the doctrine announced by the California court in Pico v. Cohn, 78 Cal. 387, 20 Pac. 706. The supreme court of California in the latter ease considered this question under a statute exactly the same as ours, and held that “the notice of intention to move for a new trial is not a necessary part of the record on appeal, and need not be embodied in the statement or presented on appeal in any form unless the respondent insists that it was insufficient.” The doctrine of that case seems to have been uniformly followed by the California court ever since its enunciation. (Kahn v. Wilson, 120 Cal. 644, 53 Pac. 24; Schneider v. Market St. Ry. Co., 134 Cal. 484, 66 Pac. 734; 4 Notes on California Reports, 482. See, also, Ettien v. Drum, 35 Mont. 81, 88 Pac. 659.) Under the provisions of our statute, sections 4443 and 4820, Revised Statutes, the notice of intention to move for a new trial is not made a part of the record on appeal, and we conclude that it has served its purpose when the motion for a new trial has been passed upon, and there is no further use of its being made a part of the record unless the adverse party objects to its sufficiency. If no-notice of intention has been given at all, or if for atiy reason it is insufficient, it is the duty of the respondent to make that objection either upon settlement of the statement or .upon the hearing of the motion for a new trial, and have his objection noted and incorporated in a statement or bill of exceptions. If he fails to do so, the court on appeal will presume that the notice was given. The fact that [390] the trial court who heard the motion has entertained a motion for a new trial, considered and passed upon the same, implies that the proper notice of intention to make such motion has been served and filed. For the same reasons given above, it is unnecessary to incorporate in the statement orders made by the trial judge extending the time for preparation of statement and service thereof. If the adverse party contends that no order has been made, or that the time granted has expired, or for any other reason the statement has been presented too late, he should make that objection either at the time of the settlement of the statement, or if he was not present at such time, then at the time of the hearing on the motion for a new trial, and if he is overruled by the court, he should have the same noted and settled in the statement or a bill of exceptions so that he may present it on appeal. (Hegard v. Cal. Ins. Co., 72 Cal. 535, 14 Pac. 180, 359.) Respondent also complains because the statement was not filed for some five months after the expiration of the time allowed for the preparation and service thereof. It will be observed from section 4441, Revised Statutes, that the statute does not contemplate the filing of a statement or a bill of exceptions until after it is settled, when it shall thereupon be filed with the clerk. The statement in this ease appears to have been filed the same day it was settled and signed by the judge. It is next contended that no written motion was ever made for a new trial in this ease. It is evident from the record in the ease that a motion for a new trial was heard by the trial court and passed upon. He certifies in his order that the case came on for hearing on the seventeenth day of December ‘ ‘ on the motion of the defendant for a new trial, ’ ’ and after other recitals therein, the court concludes with his order denying the motion. This is all the evidence necessary to be presented to thi« court in order to show that a motion for a new trial has been made in the lower court. Counsel for respondent places great reliance on his contention that the statement should be stricken from the transcript, and that the appeal from the order denying a motion for a new trial should be dismissed, for the reason that the record eon [391] tains no certificate from the judge or clerk showing what, if any, papers, affidavits, documents or files were used or considered by him in passing upon the motion. The order made by the judge in denying the motion recites that the cause came on for hearing on the seventeenth day of December, “on the motion of the defendant for a new trial and for judgment non obstante veredicto herein. E. C. Macdonald, Esq., attorney for the defendant, appeared in support of the motion and Edwin McBee, attorney for plaintiff, appeared in opposition thereto. ’ ’ After the recitals in the order, it concludes by denying both motions. We have been unable to find anywhere in the record any certificate, order or other evidence that would indicate what was presented and submitted to the court on the hearing on this motion, nor can we find what the court considered. When it is remembered that under section 4439, a new trial may be granted on any of the seven different grounds therein enumerated, it becomes at once important as to what showing was made in support of the motion for a new trial, and what matters were presented to the court and considered by him in passing upon such motion. The motion may have been made upon the ground of newly discovered evidence-, and affidavits might have been submitted to the court, or it may have been on account of misconduct of the jury and a showing accordingly have been made, or it may have been made on account of accident or surprise, or on account of errors of law committed in the course of the trial. The motion may have been made either upon a statement of the case or upon the minutes of the court. In the case at bar, it appears that the respondent, had he appeared at the time the statement was settled and approved, and made his objections thereto, might have successfully resisted the settlement of the statement at all. It does appear, however, that he was present at the settlement of this statement. It does appear that his counsel was present at the hearing on motion for a new trial. He might have there made the objection which he could have made to the settlement of the statement, and it may be that the court denied the motion for a new trial for the reason that he did not consider the statement properly settled and before him. Numerous reasons suggest themselves why the statute should be [392] complied with in this respect. Litigants should be required to present all questions to the trial court that they expect to present on appeal, and give that court the opportunity of passing upon them and possibly of saving an appeal or further litigation. Sections 4443 and 4820, 4821 designate the records and papers that shall be brought up on an appeal from an order denying or granting a motion for a new trial, and the manner of identification and certification of the same. These provisions of the statute must be complied with before this court will review an order granting or refusing a new trial. (See Tillage of Sandpoint v. Doyle, 9 Idaho, 236, 74 Pac. 861; Medbury v. Maloney, 12 Idaho, 634, 88 Pac. 81.) The motion to dismiss the appeal from the order denying a new trial must be granted, and it is so ordered. (November 16, 1907.) [92 Pac. 363.] Law or the Case — Statement not Used on Motion for New Trial — ■ Appeal prom Judgment — Statement—Bill op Exceptions— Difference in — Questions Reviewed on Appeal — Witness— Interest of — Affecting Credibility — Casualty Company Insurance — Immaterial Evidence. 1. Where questions are presented and distinctly passed upon on a former appeal, such decision becomes the law of the case. 2. Under the provisions of section 4818, Revised Statutes, a statement on motion for a new trial may be used as a bill of exceptions on an appeal from the judgment upon such questions as are authorized to be heard upon such appeal, regardless of whether the statement was used on a motion for a new trial or not. 3. When a statement on motion for a new trial has been duly settled, it is presumed to show exactly what occurred at the trial, including the exceptions reserved to the rulings of the court upon questions of law, and as to those matters it is in substance the same as a bill of exceptions. [392] This leaves the case pending on the appeal from the judgment alone, but since no question is raised that can be considered on this appeal, the judgment must be affirmed, and it is so ordered. Costs awarded in favor of respondent. Sullivan, J., concurs.