Munch v. Williamson

By the Court, Sanderson, C. J. The appeal is from the judgment and the order overruling the motion for a new trial. It is contended, on the part of the respondent, that we cannot review the order denying the new trial, because the statement was not filed within the time prescribed by the statute. The judgment was rendered on the 28th day of January, A. D. 1863, and notice of motion for new trial was served on the 30th of the same month. The statement on motion for new trial was not filed until the 13th of February, more than five days after the service of notice. The transcript contains no order of the Court or Judge extending the time allowed by the statute for filing the statement. The right to move for a new trial, therefore, must be held to have been lost, unless it appear that the objection in question has been waived by the respondent, either expressly or by implication. At the foot of the statement is an indorsement [170] to the effect that the respondent waives all objection as to the time of filing the statement, but this indorsement is not signed by either the respondent or his counsel. There is, therefore, no express waiver. The appellant contends that the respondent appeared by his counsel at the hearing of the motion, and participated in the argument, and that thereby he has waived all irregularity as to the time of filing the statement. Admitting this to be so, the fact of the appearance is denied by the respondent, and the controversy can be settled only by a resort to the transcript. The-only matter bearing upon this question of fact is found in the order of the Court overruling the motion, which is in the following words : “ Row, at this day, in open Court, comes on to be heard the defendants’ motion for a new trial, and, thereupon, after having heard the arguments of counsel, the Court overrules the same, to which ruling of the Court the defendants, by counsel, except.” We are unable to perceive how it can be seriously contended that this entry shows any appearance on the part of the respondent. It is only by a resort to a shadowy inference that we can say that there was an appearance even on the part of the appellant. It is claimed that the use of the word “ arguments ” shows that the motion was argued upon both sides. If upon questions of this character the doctrine of presumption can be invoked at all, the presumption in the present case is very much weakened and attenuated by the fact, disclosed by the record, that each defendant in this case had two counsel, making four in all. We are of the opinion that no appearance is shown. A party who claims the benefit of a waiver of this character must prove the waiver beyond cavil, and not leave it to be ascertained by conjecture or doubtful inference. This disposes of the appeal from the order denying a new trial, and leaves for our consideration only the appeal from the judgment, which rests entirely upon the judgment roll. It is contended that the Court erred in overruling the demurrer to the complaint. The plaintiff seems to have sued as administrator of two, as it is claimed, distinct estates, to each [171] of which a portion of the property alleged to have been taken from the possession of the plaintiff by the defendants and converted by them, belonged. It is contended that the plaintiff, regarded in his official capacity, is, in contemplation of law, two persons, and has been improperly joined as plaintiff, and that inasmuch as the"property belongs to two separate and distinct estates, the anomaly is presented of two persons who have no joint interest, or other connecting link, litigating each his separate and independent cause of action in the same suit. This apparently anomalous condition of the case arises from the notion that the plaintiff was obliged to sue in his official and representative capacity. All the difficulties in the case find a ready solution in the fact that no such necessity existed. It was not necessary for him to sue as administrator, and all the matter contained in the coihplaint in relation to the capacity in which he held possession of the property in question was mere surplusage ; and, inasmuch as surplusage never vitiates, might have been, and doubtless was, disregarded by the Court below. Judgment affirmed.