State ex rel. Gilreath v. District Court of First Judicial Dist.

MR. JUSTICE FREEBOURN: Application for a writ of prohibition. Relators secured a verdict, at the hands of a jury, upon trial of an action for damages in the district court. The trial judge being disqualified, Judge R. M. Hattersley was called in upon motion for a new trial and granted such motion. It is relators’ contention that the action of Judge Hattersley in granting such new trial came too late. On July 29, 1953, Judge Hattersley, after arguments made by counsel upon the motion for a new trial, made in part the following oral order, as appears on the records of the district court: “* * * Thereupon all parties having rested said matter was submitted to the court. Whereupon court decided matter not considered submitted until all briefs are in, said defendants (Phillips Dairies et al.) allowed 20 days to submit brief and plaintiff (E. R. Kraut) to submit reply to brief 10 days thereafter.” [433] It is admitted in the answer and return of plaintiff (Kraut) that the last brief to be filed under the court’s order of July 29, 1953, was, after service thereof on opposing counsel, filed with the clerk of the district court on August 25, 1953. Intending to get quick action from a trial court in passing upon motions for a new trial, our legislature enacted R. C. M. 1947, sec. 93-5606, which in part provides: “* * * the court shall decide the motion within fifteen days after the same is submitted. If the court shall fail to decide the motion within said time, the motion shall, at the expiration of said period, be deemed denied. Under the issues raised in this proceeding, the question to be answered is: Was the motion for a new trial submitted when the last brief was filed on August 25, 1953, or was it submitted upon the last day allowed for the filing of such brief, August 29, 1953 ? When plaintiff Kraut filed his brief on August 25, 1953, the court had before it all the briefs contemplated by the order of July 29, 1953, which briefs constituted everything necessary to deciding the motion for a new trial. Since the court had everything necessary to a decision on the motion for a new trial on August 25, 1953, it could have decided such motion the next day, if it so desired, or any day thereafter within the time allowed by statute. The 30 days allowed for briefs were for the benefit of the parties. It did not set the time when the motion for a new trial was deemed submitted, except and only if the briefs or some of them were not filed within such time. In such event the court could, after the lapse of such thirty days, pass upon the motion. That the court, in mailing its order of July 29, 1953, contemplated the matter would be considered when the briefs were in, and not at the end of the 30 day period given for their filing, seems clear, in view of the words of the order, “* * * matter not considered submitted until all briefs are in * * In McCarthy v. Employers’ Fire Ins. Co., 97 Mont. 540, 37 Pac. (2d) 579, 582, 97 A. L. R. 292, we said: “* • * a case is [434] not ‘submitted’ to the court sitting -without a jury, until all that is necessary to a decision is before the court * * In Crane v. Leclere, 204 Iowa 1037, 216 N. W. 622, 624, the court said: “It is manifest that there was something yet to be done before the submission was complete, and that was the filing of the respective briefs by the contending parties, within the time allowed by the court; and the case could not be considered as finally submitted until the briefs had been filed or the time for the filing of the same had expired. * * * The effect of granting time to file briefs was that the case was not finally submitted for determination by the court until the court could have the briefs for the consideration of the matters before him, or until the expiration of the time granted for the filing of same. * * * ” To the same effect is Plattsmouth Loan & Bldg, Ass’n v. Sedlak, 128 Neb. 509, 259 N. W. 367. We conclude, with reason, that when the briefs of counsel were all filed and the court had before it everything necessary to decide the motion for a new trial, then and at that time, August 25, 1953, the law considered the said motion as having-been submitted. Since the court did not decide such motion for a new trial “within fifteen days after” such submission, the motion at the expiration of said period was “deemed denied” and the court’s ruling made on September 11, 1953, granting a new trial was null, void and of no effect. See State ex rel. King v. District Court, 107 Mont. 476, 86 Pac. (2d) 755. For the reasons stated a peremptory writ will issue restraining the Honorable R. M. Iiattersley, district judge presiding, from taking any further action on the motion for a new trial in cause No. 22641, in the records and files of the district court of the first judicial district of the State of Montana, in and for the County of Lewis and Clark. MR. JUSTICE BOTTOMLT, concurs.