4 Utah 192 | Utah | 1885
This is an appeal from an order of tbe court below, overruling a motion to set aside a judgment on tbe verdict. Tbe plaintiff: filed bis complaint, duly verified, claiming tbe personal property described, and alleging its value to be two thousand five hundred dollars. Tbe defendant answered, admitting tbe right and title of one billiard table to be in plaintiff, and denied that defendant bad taken or detained it, and denied tbe allegation of right in plaintiff to tbe other property, but did not deny tbe allegation of value. Defendant also justified taking tbe goods, except tbe billiard table mentioned, as United States marshal, under a writ of attachment against Bobert Burns, in fa.vor of Livingston & Co., alleged property in tbe former, indebtedness from him to tbe latter, and that plaintiff took tbe goods under legal process while defendant was so bolding them.
Section 1290 Compiled Laws, Utah, provides that every material allegation of tbe complaint, when it is verified, not specially controverted by tbe answer, shall, for tbe purpose of tbe action, be taken as true, and allegation of new matter in tbe answer, shall, on tbe trial, be deemed controverted by the adverse party. Under this statute, tbe pleadings presented an issue on plaintiff’s right, on property in Burns, on tbe justification under tbe attachment, and on tbe taking of tbe goods afterwards by tbe plaintiff. These issues were submitted to a jury, who, on tbe twenty-fifth day of May, 1883, returned tbe following verdict: “We, tbe jury, find for tbe defendant on tbe issues in tbe above entitled cause.” And tbe court, on tbe same day, adjudged that defendant recover of tbe plaintiff tbe possession o.f tbe property described in tbe complaint, except tbe billiard table, admitted in tbe answer, to belong to plaintiff, or two thousand five hundred dollars in case delivery could not be bad. On June 21,1884, tbe plaintiff filed a notice of motion to set aside tbe judgment. 1st. Because it was not supported by tbe pleadings. 2d. Because it was not supported by tbe verdict. We find no error in tbe pleadings.
More than a year intervened between the twenty-fifth day of May, 1883, tbe date of this judgment, and tbe twenty-first day of June, 1884, when tbe notice of tbe motion to set it aside was filed, and several terms of tbe district court in which it was rendered bad intervened.
After an adjournment of a term of court at which a judgment is rendered, tbe court loses all power to set it aside on motion made at a subsequent term, in tbe absence of a statute authorizing' it to be done: 1 Estee’s Plead., 2d ed., p. 33; Carpenter v. Hart, 5 Cal. 407; De Castro v. Richardson, 25 Cal. 52.
It appears from tbe record that on June 20, 1883, twenty-six days after tbe date of tbe judgment and during tbe term at which it was rendered, tbe plaintiff filed an affidavit in which be stated certain reasons for a new trial, and on tbe twenty-seventh day of tbe same month this affidavit appears to have been served on defendant. This is all that appears on tbe record with respect to tbe motion. Tbe plaintiff urges that tbe effect of these steps towards a motion for a new trial, was to retain jurisdiction in tbe court over tbe case for tbe purpose of tbe motion to vacate tbe judgment. ' No such notice of motion as is required by section 1420 of tbe Compiled Laws of Utah, 1876, was given. Tbe failure to comply with tbe law with respect to the motion, with tbe further fact that no notice appears to have been taken of it by tbe court or counsel,
Tbe order of tbe court below appealed from is' affirmed.
