Street v. Lemon Mill & Mining Co.

By the Court, Hawley, J.: This appeal is from an order of the court below refusing a new trial. Respondent objects to any consideration of appellant’s statement and claims that no notice of intention to move fox a new trial was ever given as by law required. The notice given by appellant reads as follows : “Take notice that said defendant hereby moves the said court to set aside the verdict and judgment rendered and entered in the above entitled cause and to grant a new trial of said cause ; said motion is based upon á statement to be hereafter filed.” [253] The Practice Act provides, that the party intending to move for a new trial shall give notice of the same within a specified time, and that “the notice shall designate generally the grounds upon which the motion will be made.” Stats. 1869, 226, Sec. 197. Does the notice given by appellant comply with this provision? We think not. The notice of intention to move for a new trial is independent of the affidavit and statement provided for in section 196. It must be based on one or more of the grounds mentioned in section 195; and the grounds relied upon must be generally stated in the notice. The language of the statute is clear, plain and explicit, and there is no excuse for such disregard of its express provisions. In Worthing v. Cutts, this Court held that the Practice Act did not require that the statement should designate the general grounds of error relied upon, and added that ‘ ‘ the notice of motion is required to state generally the grounds of error.” 8 Nev. 120. In Flateau v. Lubeck, (24 Cal. 365) it was held that the use of the statement was ‘ ‘ dependent on a valid and effectual notice.’** No statutory notice of intention to move for a new trial having been given, and the proper objections having been made by respondent, it follows that appellant’s statement could not be made the foundation of a motion for anew trial. Flateau v. Lubeck, supra; Zenith G. and S. M. Co. v. Irvine, 32 Cal. 303; Wright v. Snowball, 45 Cal. 654; Calderwood v. Brooks, 28 Cal. 154. The order denying a new .trial is affirmed.