Price v. Northern Pacific Ry. Co.

MR. COMMISSIONER SPENCER prepared the opinion for the court. This is an action for damages to plaintiff’s land and certain personal property, caused, as charged by the plaintiff, by negligence of the defendant in constructing and maintaining an obstruction which diverted the flood waters of the Missouri River upon the plaintiff’s land. Issue was joined and trial had to a jury, which returned its verdict in favor of defendant. Judgment upon the verdict was made and entered November 30, 1917. On December 8, 1917, plaintiff served and filed his notice of intention to move for a new trial upon the grounds of (1) the insufficiency of the evidence to justify the verdict and (2) errors in law occurring at the trial and excepted to by the plaintiff, and based his motion “on the minutes of the court and upon a bill of exceptions hereafter to be settled.” On October 11, 1918, plaintiff served notice upon the defendant that on November 11, 1918, he would call for hearing his motion for new trial, and among other things the notice contained the following: “The said motion will be made pursuant to the notice of intention to move for a new trial heretofore filed in the above-entitled action, and will be [170] heard upon the records and files in said action”; and on November 11, the motion for new trial was submitted to the court upon brief of plaintiff and written communication from defendant to the court objecting to the hearing of said motion as being in violation of section 6797 of the Revised Codes. On November 27, the court made its order vacating the verdict and judgment based thereon and granting a new trial. Appeal is from said order. Appellant concedes that if the motion for a new trial based upon the minutes of the court could be heard at all, under the conditions as shown by the record, this court will not interfere with the order of the court below, so that but two questions are before us for determination, viz.: Could the motion be heard upon the minutes of the court at all, in view of the record before us? and was such hearing in violation of the provisions of section 6797, Revised Codes? [1,2] The notice served on defendant, advising it of the day upon which the motion for a new trial would be called for hearing, has served its purpose when the adverse party is told a reasonable length of time in advance that the motion would be called to the attention of the court, so that he may present any defense he may have to the motion. No particular form of notice is required. In this case thirty days’ notice was given, and defendant was advised that the motion would be heard pursuant to the notice of intention, and “upon the records and files in said action.” The last phrase was purely gratuitous upon the part of the movant, and neither added to nor detracted from the grounds of the motion itself. The respondent was not bound by any statement in his notice, as the motion, in any event, could only be heard upon the grounds and pursuant to the notice of intention. The notice of intention was based upon the minutes of the court, as well as a bill of exceptions, thereafter to be settled. The motion having been granted, and the record before us being silent as to the existence of a bill of exceptions, we indulge the presumption that the order was made upon the minutes of the court, and [171] the burden was upon the appellant to show that it was not so made. (Moore v. Butte Elec. Ry. Co., 47 Mont. 214, 131 Pac. 635.) [3, 4] "Was the court justified in hearing the motion notwithstanding the provisions of section 6797, Revised Codes? This section provides: “The application for a new trial must be heard at the earliest practicable period after notice of the motion, if the motion is to be heard upon the minutes of the court.” The record does not disclose any cause or excuse for delay in hear ing the motion. The determination of the question of diligence in presenting the motion for hearing was within the discretionary power of the trial court. (Galbraith v. Lowe, 142 Cal. 295, 75 Pac. 831; Dorcy v. Brodis, 153 Cal. 673, 96 Pac. 278.) Delay such as appears here should not be countenanced by the court unless for good cause shown, and much of the criticism heaped upon the courts of to-day is due to such cause. However, we presume, in the absence of affirmative showing to the contrary, that the trial court heard the motion in the ordinary exercise of its judicial duties, at the earliest practicable period after notice of motion (State ex rel. Beach v. District Court, 29 Mont. 265, 74 Pac. 498), and unless there is clear abuse of discretion, this court will not interfere (Brange v. Bowen, 57 Mont. 77, 186 Pac. 680; Jones v. Shannon, 55 Mont. 225, 175 Pac. 882; Robinson v. Cole, 46 Mont. 140, 126 Pac. 850; Mullen v. City of Butte, 37 Mont. 183, 95 Pac. 597; Ettien v. Drum, 32 Mont. 311, 80 Pac. 369; Hendrickson v. Wallace, 29 Mont. 504, 75 Pac. 355). [5] Either party could have called this motion for hearing, and while primarily this duty devolved upon the movant, yet if the defendant felt aggrieved by the delay it could have exercised its privilege, and by not doing so it must share the fault. We cannot say the court abused its discretion. We find no error in the ruling of the court, and therefore recommend that the order of the court vacating the verdict and judgment and granting a new trial be affirmed. [172] Per Curiam : For the reasons given in the foregoing , opinion, it is ordered that the order of the court vacating the verdict and judgment and granting a new trial be affirmed. Affirmed. Mr. Justice Galen, being disqualified,. takes no part in the above order.