223 Mich. 254 | Mich. | 1923
The issues here involved grow out of certáin condemnation proceedings in the recorder’s court of the city of Detroit. The city sought the property in question for use of the fire department. On the.trial the jury returned a verdict for the defendants in the sum of $86,000. The verdict was rendered on the 15th of November, 1921. On the 17th of November the city asked for an extension of time in which to file a motion for a new trial. The time was extended to November 27,1921. Oh November 26, 1921, without any motion for a new trial having been filed, upon motion of the city, an order was entered “that the hearing of arguments for the motion for a new trial heretofore filed in the above entitled cause be continued until the 30th day of November, A. D. 1921, at 9:30 o’clock a. m.” On December 1, 1921, on motion of the city, the time within which to move for a new trial was extended for 10 days or to December 12, 1921. On December 7, • 1921, a motion for a new trial was filed and on December 10th these plaintiffs filed a motion to strike the motion for a new trial from the files and to enter an order confirming the verdict of the jury. On December 17th, a motion was made by the city for an order nunc pro tunc extending the time within which to file a motion for a new trial for a period of 10
It is first urged by counsel for the plaintiffs that the defendant was without jurisdiction to grant the motion for a new trial because it was not filed withitn the two days allowed by the statute nor within the extension of time granted by the court. The original extension of time expired on the 27th day of November without any motion for a new trial having been filed, and without more time having been secured. Nothing further was done until December 1st, when on motion of the city the court again extended the time for 10 days or until December 12th. It is the claim of the plaintiffs that not having filed its motion on or before November 27th, the city lost its right to move for a new trial, and that thereafter the court had no power to further extend the time nor to grant the motion for a new trial.
The city charter provides that in condemnation cases a motion for a new trial must be made within two days after the rendition of the verdict unless further time is allowed by the court. Unless the moving party makes his motion during the two days or secures an extension of time during the two days, he loses his right to move for a new trial and the court cannot thereafter restore it. This does not mean that a new trial cannot thereafter be granted. The court can do that on its own motion, but it has lost jurisdiction to en
“If the time is extended by order of the court beyond the 20-day period, there is power to grant further extension, and a discretion to settle and sign a bill of exceptions even after ordered time has expired, but if there has been no extension of the time beyond the 20-day period, the power to settle a bill of exceptions does not exist.”
In the instant case the same rule may be applied. The time was extended by order of the court during and beyond the two-day period. After that the court had power to grant further extensions on the city’s application, or a new trial,, even after ordered time had expired, but if there had been no extension of time during and beyond the two-day period, the power to grant a new trial did not exist except on the court’s own motion. The extension granted during the two-day period expired on November 27th. From that time until December 1st, a period of three days, no motion was pending and no extension was in effect. On December 1st counsel for the city made
There are no other questions which require discussion.
The writ is denied, with costs to the defendant.