Clark Implement Co. v. Wadden

136 N.W. 111 | S.D. | 1912

McCOY, P. J.

This is an appeal from an order granting a new trial.

Appellant contends (1) that the time for serving notice of intention to move for new trial had long expired before service of notice of intention; (2) that no cause for new trial was shown to exist. The action was on the equity side of the court. Defendants appeared and answered by -attorney. The .cause came on for trial and was heard upon plaintiff’s evidence on the 9th day of May, 1911. Neither defendants nor their attorney were present at the trial. On November 28, 1911, defendant Mary J. Wad-don served notice of intention to move for new trial, and on December 22d following the motion for new trial- was brought- on for hcaring and granted.

[1-2] Plaintiff contends that the time to serve notice of intention had expired, and, no cause having been shown, or application made to excuse such delay, that the court was not authorized to hear or grant said motion. While, on the other hand, respondents contend that no notice of decision, as provided for by section 303, C. C. Pr., was ever served upon defendants that would 'start running the 20 days’ time in which to serve such notice of intention. We are of die opinion that respondents’ contention is right, and that the notice of intention was served in due time. Although plaintiff, on May u, 1911, served,notice of taxation of costs upon defendants’ attorney, and on June 1, 1911, notified defendants personally, by letter, that judgment liad been rendered against them, -and that copies of the findings of fact and conclusions of law would be sent to them as soon as received from the judge of the court, and that, on July 21, 19x1, copies of the findings were mailed to defendants personally, and thereafter execution was issued, of which defendants personally had notice, still none of this procedure amounted to written notice of decision, as comprehended within the meaning of section 303, C. C. Pr. Findings and decision by the trial court must be in writing and filed with the clerk (section 276, C. C. Pr.'), before they become effectual as a decision. There is nothing- in plaintiff’s brief, or in the original record before this court, shewing whether or not the findings and decision made by the court were ever, at any time, filed with the clerk of the circuit court. The notice of taxation of costs was not notice of decision. Defendants’ attorney might 'have inferred from the service of notice to- tax costs that findings had been or would be made favorable to plaintiff. The record shows that as late as June 1st the findings were still in -the hands of the trial judge. The mailing of copies of the findings and conclusions of law -to -defendants personally was not service of anything. Defendants had appeared by attorney; -and lawful notice could only , be served upon the attorney. Section 561, C. C. Pr., The notice of decision must be in writing. Section 552, C. C. Pr. There was no written notice to defendants, showing the time when this decision was made and filed, or that it had been made and filed. The precise question has been heretofore decided by this court in P>ank v. McCarthy, 13 S. D. 357, 83 N. W. 423. Sections 659 and 1010, C. C. Pr. California, are the same as sections 303 and 552 of our Code. In Mallory v. See, 129 Cal. 356, 61 Pac. 1123, a very-similar case, the Supreme Court of California held that, although defendant's attorney had taken part in making up the judgment, that did not start the running of the time to serve notice of intention ; that no procedure, other than the service of written notice of decision, will suffice, where defendant has not waived such written notice.

[3] The granting of a new trial is largely within the discretion of the trial court, and will not be reversed, unless it clearly appears • from the appeal record that such discretion has been abused. There is no such showing.

The order appealed from is affirmed.