Ogle v. Potter

MR. CHIEF JUSTICE BRANTLY, after stating the case, delivered the opinion of the Court. It was held by this Court in Whitbeck v. Montana Central Railway Co., 21 Mont. 102, 52 Pac. 1098, that an appealable order, regularly made, cannot be reviewed or set aside by the court making it, except in the cases provided by statute. In that case judgment had been rendered upon the pleadings in defendants’ favor. Subsequently, and before entry of the judgment, the court, concluding that it was erroneous, set it aside upon its own motion. This action was held to be in excess of jurisdiction, in view of the provisions of the Code of Civil Procedure prescribing a mode for securing a new trial and for a review of the judgment on appeal. The remarks made in the opinion touching the power of the district court [504] over its own judgments are pertinent to this case. The general result reached is that unless the judgment or order in question comes within the rule that the court may within a reasonable time correct mistakes in its proceedings, and annul orders and judgments inadvertently made, it should not be disturbed, except by formal methods prescribed by statute. The order complained of here, not falling within this rule or any other recognized exception, must be justified, if at all, upon one of two grounds, viz.: That the proceeding upon which it is based comes within the provisions of the Code of Civil Procedure authorizing the granting of new trials; or those permitting a party to be relieved of a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. Counsel argues that it cannot be justified on either ground. 1. A motion for a new trial is a statutory remedy, and can only be invoked in the manner, within the time, and upon the grounds provided for in the statutes. The moving party must, within 10 days after the verdict or notice of the decision of the court or referee (as the case may be) file with the clerk and serve upon the adverse party his notice of intention, designating the grounds upon which he relies. (Code of Civil Procedure, Section 1173.) In the absence of such a notice, or if the notice fails to set forth one or more of the grounds enumerated in Section 1171, the court has no power to act. The notice is the foundation of the proceeding. (Arnold v. Sinclair, 12 Mont. 248, 29 Pac. 1124.) If the notice has been properly given, the moving party must prepare, file, and serve his affidavits, if he relies upon affidavits, under the requirements of Subdivision 1 of Section 1173. If he relies upon a bill of exceptions, and his bill has not already been settled under the provisions of Section 1154, he must prepare, serve, and have it settled under Subdivision 2 of Section 1173. If the motion is to be made upon a statement, the provisions of Subdivision 3 of that section must be observed. It is only when these various steps have been taken in proper time that the motion can be entertained; and the [505] rule applies indifferently to. law and equity cases, for under our Code the procedure is the same in both. The notice upon which the proceedings in this case were based failed to comply with the statute, in that it was not given until nearly four months after notice of the decision, and designated no ground upon which a new trial could be granted. Even if the notice had been in time and sufficient in substance, the affidavit contained none of the grounds enumerated in Section 1171, of which alone the court could take notice. The fact that the referee had left the state without obeying the order made on December 12, 1897, though it resulted in inconvenience, or even injustice, to defendant, was no ground for a new trial. The trial had then been concluded, and the judgment entered. Nothing in the behavior of the referee, however inexcusable it may have been, tended to show that the findings and judgment were not entirely proper; nor did it furnish any reason why the plaintiffs should be arbitrarily deprived of their rights already declared. Otherwise, in any case in which a party should be prevented.by unforeseen misfortune from applying for a new trial under the statute, the court might, in its arbitrary discretion, grant him relief, and thus disregard the statutory limitation upon its power. The death of the referee, or the accidental destruction of his notes of the evidence, or any other similar occurrence, would appeal just as strongly to the court as does the situation here presented. The original motion having been abandoned, the right to move thereafter upon any ground was lost, and the order made upon the second motion was unauthorized. 2. Nor can it be supported on the theory suggested in the second ground. Section 774 of the Code of Civil Procedure provides that the court may, in its discretion and upon seasononable application, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; but this provision has no application to such a case as is here presented. It has reference to cases where a party has, for one or more of the reasons men [506] tioned, been prevented from having a proper hearing in the first instance, and is in default. Here the defendant had his day in court in the first instance. The hearing was had, and the findings and judgment were regularly made and entered. The facts set forth in the affidavit show no mistake, surprise, nor inadvertence on the part of defendant, but only wrongdoing on the part of the referee, in no wise affecting the integrity of the judgment. 3. Defendant argues that the affidavit shows without contradiction that the entry of the judgment was conditioned upon a compliance by the referee with the order of December 12, 1897, and that the action of the district court should be affirmed on this ground. Conceding, for the sake of argument that such an entry of judgment was proper, the record does not bear out defendant’s claim. It shows that the entry of the judgment was absolute and unconditioned, and that the order requiring the transcript to be filed was solely at the instance and for the accomodation of defendant. On this point we may only look to the record of the district court made at the time, and cannot be controlled by the statements contained in the affidavit, even though these statements may have furnished the ground upon which the district court based the order under consideration. The order is therefore reversed. Reversed.