Behrensmeyer v. Gwinn

STEWART, J. This is an application for a writ of prohibition to Hon. James G. Gwinn, district judge of the ninth judicial district for the county of Bonneville, commanding and restraining him from proceeding any further to settle any bill of exceptions in the case of Behrensmeyer et al. v. Plank or to entertain or hear any motion for a new trial therein or to further interpose the said stay of proceedings to prevent the plaintiffs from collecting their damages recovered by them and otherwise realizing the fruits of their judgment. The prayer of the application requests that a writ of prohibition be issued in the alternative in the first instance, to be followed by a peremptory writ after the hearing, and that a time be fixed for the return of the alternative writ with directions for notice to the district judge and a hearing on his answer. This petition was subscribed to by Otto E. McCutcheon and attached to it are exhibits which we will hereafter refer to. Judge Gwinn filed an answer, verified by him, apparently intended to be denials of different allegations of the petition. At the hearing the case was orally argued, and a brief was submitted by counsel for the plaintiffs. The defendant did not appear at the hearing, either personally or by counsel, except by the answer that was filed. The petition for the writ states the facts briefly as follows: That the action in the district court was an equitable action; that the answer in that ease stated an issue which was submitted to the jury and on November 15, 1909, the jury returned a verdict for the plaintiff for $800 damages. June 9, 1910, Judge Stevens made his findings of fact and conclusions of law, adopting the verdict of the jury upon the issues submitted to them, and on June 20, 1910, entered a decree for plaintiffs, and on July 8, T910, a copy of the decree was served on the attorney for the [189] defendant and receipted for by him. The defendant and his counsel treated the proceedings before the jury as a trial of the case, and on November 18, 1909, Judge Stevens gave the defendant ninety days within which to prepare, serve and file a notice of intention to move for a new trial and to prepare and serve his proposed bill of exceptions or statement. A similar order was made by Judge Stevens February 13, 1910, and a third on May 10, 1910, and a fourth on August 2, 1910, and the record shows that ten such orders altogether were made. These orders were granted without hearing and with no showing or cause so far as the record is concerned. Such orders purported to extend such time from the 18th day of November, 1909, up to and including the 28th day of March, 1912. Otto E. McCutcheon has been attorney for plaintiffs throughout the proceedings and Linger & Hanson came into the case by agreement to represent plaintiff Lords. On March 28, 1912, the defendant undertook to give notice of his intention to move for a new trial and serve his bill of exceptions. Service of papers was refused by McCutcheon on the ground of laches and lack of due diligence. Linger & Hanson accepted service. The papers were filed and on the same day, March 28th, the clerk handed the purported bill of exceptions to Judge Gwinn of the ninth judicial district. The defendant took an appeal from the judgment, June 17, 1911. The appeal was dismissed by this court September 15, 1913, for laches. No stay bond was filed affecting the appeal. On July 31, 1913, an execution was taken out. The stay bond was filed August 11, 1913, and the execution withdrawn. Remittitur after dismissal of appeal came down from the supreme court October 8, 1913. On October 18, 1913, the district court for Bonneville county was in session, Judge Gwinn presiding. Mr. E. M. Holden, attorney for defendant, asked the court to take up the settling of his bill of exceptions and asked the court to enter an order staying execution taken out the same day. These proceedings were taken against the protest and objection of the attorney for plaintiffs. On October 28, 1913, Judge Gwinn stated to plaintiffs’ at [190] tomey that he had decided in favor of his jurisdiction to settle the bill of exceptions and would settle the same and entertain and hear a motion .for a new trial. On October 28, 1913, motion for a new trial was filed by defendant. Otto E. McCuteheon in his affidavit alleges on information and belief and further by reason of said motion and notice that it is the intention of the defendant by his said attorney to bring up said motion for hearing in the near future, and that it is the intention of the said Hon. James G. Gwinn, judge of the district court as aforesaid, to hear the same unless restrained by the writ of prohibition to issue out of this court. Thus it is shown in the affidavit that on the 18th day of October, 1913, the deponent ordered and took out an execution in said cause against the defendant for the collection of the judgment and the attorney for the defendant moved the court for a stay of proceedings against the execution in open court in the presence of the deponent, whereupon the deponent denied the jurisdiction of the court to stay proceedings and the same was entered by the clerk without any bond or other security to the plaintiffs for the judgment. This application demands a writ restraining Judge Gwinn from interposing stay of proceedings on the ground that it will delay and interfere with the plaintiffs’ collecting their damages recovered by them and thereby realizing the fruits of their judgment. There is no reason assigned on the part of the defendant that justifies such extension of time by the four orders made by Judge Stevens as jurisdictional, and it is sufficient to call attention to the fact that the action is an action in equity and the verdict of the jury is merely advisory. Sec. 4396, Rev. Codes, provides: “The verdict of a jury is either general or special.....” The- above section recognizes a distinction between law and equity actions. (Brady v. Yost, 6 Ida. 273, 55 Pac. 542; Curtis v. Kirkpatrick, 9 Ida. 629, 75 Pac. 760; James v. McCann, 78 Cal. 107, 20 Pac. 241; Bell v. Marsh, 80 Cal. 411, 22 Pac. 170.) By chap. 117, Laws of 1911, sec. 4818 of the Rev. Codes was amended and now provides: “ On an appeal from a final judg [191] ment the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll and of any bill of exceptions or reporter’s transcript prepared and settled as prescribed in see. 4434, upon which the appellant relies.” See. 4441, Rev. Codes, amended by chap. 118, Laws of 1911, p. 377, provides the required proceedings of a party intending to move for a new trial, and see. 4442 provides that “the application for a new trial shall be heard at the earliest practicable period after notice of motion.....” Sec. 4807, Rev. Codes, was amended February 20, 1911, chap. Ill, Laws of 1911, and par. 1 provides: “An appeal may be taken to the supreme court from a district court: 1. From a final judgment in an action or special proceeding commenced in the court within which the same is rendered . . . . within sixty days after the entry of such judgment.” The record in this case shows very clearly that these various papers were not prepared as the law requires. It is also contended that the record shows want of diligence, delay and laches on the part of the defendant, and that the entire record shows the appeal has not been prosecuted in good faith or with a view of reversing the judgment rendered in the case. Smith v. American Balls etc. Co., 15 Ida. 89, 95 Pac. 1059, announces and considers the proper rule in considering appeals. “While the statute fixes no time within which a motion for a new trial must be heard, yet the statute does require that notice of intention to move for a new trial shall be served within ten days after the decision of the court, and that the application for a new trial shall be heard at the earliest practicable period after the notice of' motion. This contemplates that the party intending to move for a new trial shall, with diligence, prosecute such motion. The fact that the judgment was rendered in July, 1906, and the statement was not settled until November 6, 1907, does not show diligence on the part of the appellant to bring about a hearing upon his motion for a new trial, and fails to show that the appellant is prosecuting the appeal in good faith. McCrea v. McGrew, 9 Ida. 382, 75 Pac. 67.” The following cases are also cited in the [192] above ease: Lee Doon v. Tesh, 131 Cal. 406, 63 Pac. 764; Descalso v. Duane, 3 Cal. Unrep. 893, 33 Pac. 328. The rule announced by this court in the case of Smith v. American Falls etc. Co., supra, we approve as applicable in this case, and the present case, even more strongly than the Smith case supports the rule that the party intending to move for’ a new trial shall, with diligence, prosecute such motion; the record in the present case does not show diligence upon the part of the appellant to bring about a hearing upon his motion for a new trial, and fails to show that the appellant has prosecuted the appeal in good faith. We therefore hold in this case that Hon. James G. Gwinn, judge of the district court of the ninth judicial district in and for the county of Bonneville, had no jurisdiction or authority to settle the bill of exceptions on the 3d day of November, 1913, at 2 o ’clock in the afternoon of said day, or at any other time, as stated in the notice of E. M. Holden, attorney for defendant and cross-complainant, and served on the plaintiffs and their attorney; and also has no jurisdiction to proceed any further in this case. The clerk of this court is directed to issue a writ of prohibition in accordance with the holding of this court. Costs awarded to petitioners. Sullivan, J., concurs.