Stanton v. C. B. & Q. R.

Beard, Justice. The plaintiff in error seeks a reversal of a judgment of the District Court of Natrona County, rendered in an action brought by him against the defendants in error, in which action he alleged in his petition that he was the owner of certain real estate situated in said county; that defendant Railroad Company claimed title thereto by virtue of a warranty deed from defendant Samuel J. Jordan, and that said defendant claimed that said Jordan on August 26, 1910, received a warranty deed to said land from plaintiff. And he alleged that said last mentioned deed purporting to have been executed by plaintiff to said Jordan was a forgery; and that plaintiff had never parted with his title to said land. He prayed that said pretended deed from plaintiff to said Jordan be declared a forgery and null and void; and that defendants be enjoined and debarred from asserting .any claim to said land adverse to plaintiff. The defendant Railroad Company answered, admitted that prior to August 26, 1910, plaintiff was the owner of [141] said land; admitted that it claimed title thereto by virtue of a warranty deed from said Jordan, and denied that the deed from plaintiff to said Jordan was a forgery. Upon the issue thus joined the case was tried to the court, and the court found against the plaintiff, and that the title to said land was in the defendant, Chicago, Burlington & Quincy Railroad Company, and dismissed the action at plaintiff’s costs. The record filed in this court is so- imperfect and defective that it is at least doubtful if it presents anything which can, under the well settled rules of practice, be considered. It appears, however, that the issues were made up in May, 1912, and thereafter the case was set down for trial April 29, 1915, and on the application of plaintiff was continued until June 21, 1915. On that date the cause coming on for trial, the plaintiff not being present or represented by counsel, the court announced, “I have here a communication from Frederick J. Stanton, plaintiff in this action, asking for a further continuance of the case.” The application for a continuance was resisted, and by the court denied and the trial proceeded with, the judgment being entered the same day. The communication referred to is not included in the bill of exceptions, nor is the ruling of the court denying a continuance assigned as error in the motions for a new trial. That ruling cannot therefore be considered, being raised for the first time in this court. On July 1, 1915, plaintiff filed a motion to set aside the judgment and for a continuance of the case until the next term of the court. The motion contains none of the grounds prescribed ¡by the statute for a new trial. On August 28, 19x5, plaintiff filed another motion for a new trial, signed by himself and by two “advising attorneys for plaintiff.” These motions came on for hearing and determination August 30, 1915, at which time, the order recites, plaintiff appeared in person and by counsel, A. H. Cobb, Esq., and Joseph N. Baxter, Esq. Upon consideration by the court, both motions were denied, to which ruling exceptions were taken. There was no error in the ruling on [142] the first motion, as it was insufficient, stating no statutory ground- for a new trial. The second motion was filed long after .the time allowed by law for filing the same had expired, and for that reason alone the denial of the same cannot -be held to- 'be erroneous. ■ We have, however, considered the motion and the evidence given in support thereof, and are of the opinion that no abuse of the discretion of the court in its ruling is made to' appear. It appears that plaintiff was conducting his own case without the assistance of attorneys, except as' above, stated, which may in a measure account for the defects in. the record. But this court cannot on that account depart' from and disregard the well established and necessary rules of practice and procedure. The judgment is sustained by sufficient evidence, and is affirmed. Affirmed. PottüRj C- J., concurs.