Yerrick v. District Court in & for Salt Lake County

STRAUP, C. J. We are asked by prohibition to restrain the district court from proceeding to hear a motion for a new trial in the case of -the Houston Real Estate Investment Company, Plaintiff, v. Heehler, Defendant, and Yerrick, Intervener. Upon a trial' to the court and a jury a verdict was rendered against the investment company and in favor of Yerrick for $4,682. The: [620] ease to the rendition of the verdict was treated by the parties as triable by jury. Then the investment company claimed the case one in equity, urged the court to regard the verdict as merely advisory, and proposed and requested findings on all the issues. The court, so regarding the verdict, refused to recognize it, made findings at variance with it, and upon the findings rendered and entered judgment in favor of the investment company. From that judgment Yerrick appealed. The ruling of the court so disregarding the verdict and so making findings was the only point presented by the appeal. On the record nothing further could have been reviewed. "We held the court erred in such particulars and remanded the cause, with directions to enter a judgment on the verdict. 47 Utah 215, 152 Pac. 726. On remittitur judgment accordingly was so entered. Within five days thereafter the investment company served and filed a notice of motion for a new trial. Yerrick moved to strike the notice. That motion was overruled. This proceeding then was instituted by Yerrick to restrain the court from further proceeding with the motion for a new trial. The contention is, that the court then was without jurisdiction to entertain such a motion. This is because of the statute (C. L. 1907, section 3294), requiring a party intending to move for a new trial to serve and file a notice thereof within five days after verdict. The notice, of course, was long after the rendition of the verdict. Ordinarily a party intending to move for a new trial is required to serve and file a notice within five days after verdict. But that is on the assumption of an operative verdict and one recognized as such and acted upon. Here the court wholly disregarded the verdict, and set it aside, and himself made findings. There was no longer any verdict left to move against. Judgment was entered on the findings, not the verdict. Those were in favor of the investment company. It was content with that. Yain indeed would it have been had the investment company moved against a verdict already annihilated and set aside, and had asked for. a new trial of the cause against findings made and judgment entered in its favor. Until the verdict was restored the investment company had no grievance and nothing to [621] move against. All we did on tbe appeal was to restore the verdict and to direct judgment to be entered upon it. The cause thus was left just where it would have been had the court at the first instance done what we, on the appeal, directed to be done. To deny the investment company thereafter to move against the verdict and to apply for a new trial is in effect to deny it such right altogether. Under the circumstances we think the district court has jurisdiction to entertain the motion. Severy v. Chicago R. I. & P. Ry. Co., 6 Okl. 153; 50 Pac. 162; Kansas, Ft. S. & M. R. Co. v. Berry, 55 Kan. 186, 40 Pac. 288. The situation in the Kansas case is very similar to the situation here. There a general and special verdict was rendered in favor of the plaintiff Berry for $5,000. The trial court refused to receive or recognize the verdicts, but permitted them to be filed (52 Kan. 762, 34 Pac. 805, 39 Am. St. Rep. 371), and then, on the defendant’s motion, notwithstanding the general and special verdicts in favor of the plaintiff, directed a verdict in favor of the defendant, the railway company, upon which judgment was rendered and entered. Here the court, notwithstanding the verdict determining the whole of the issue in favor of Yerrick, treated it merely as advisory, refused to recognize it or act upon it, made findings at variance with it, and entered judgment upon them in favor of the investment company. There, as here, the apr pellate court directed judgment to be entered on the verdict as rendered. There, as here, a motion for a new trial was made within the statutory period, not after the rendition of the verdict, but after the entry of the judgment in obedience to the’mandate of the appellate court. There, as here,-the claim was made that the motion came too late, and that the court was without jurisdiction to entertain it. Said that court: “Tbe defendant, having a verdict in its favor, and a judgment tbereon, not only was not called on to file a motion for a new trial, but that there was absolutely no foundation for any such motion. It is further insisted that vitality was first given to the verdict by the order and judgment of this court, and that not until its mandate was presented to the district court did the verdict of the jury have any force as a verdict; that the defendant was then, for the first time, called upon to challenge its correctness or the proceedings [622] of the court at the trial. These views impress us as sound. The defendant was under no obligation to recognize a verdict as valid which the court refused to receive or act upon. This court held that the district court erred in refusing to receive the special findings and the general verdict in favor of defendant (plaintiff), and in refusing to treat them as verdicts, and directed that they should be so received and treated. We think the defendant then had a right to file a motion for a new trial within the statutory time after the mandate of this court was presented; that it was then the duty of the court to pass on the motion for a new trial; and that, on such motion being overruled, the defendant had a right to make a case, and present to this court any errors occurring at the trial. If this were not so, the defendant would be utterly without remedy, no matter how many or serious the errors of law occurring at the trial might have been.” These reasons and conclusions, we think, are applicable here. Let the writ therefore be denied, and the proceedings dismissed at petitioner’s costs. Such is the order. McCARTY, J., concurs.