274 P. 111 | Idaho | 1929
This appeal is from an order denying motion for new trial.
The trial was before the court without a jury. At the close of plaintiff's evidence, on October 13, 1927, defendant Lewiston National Bank made a motion "for judgment on the evidence." After argument upon this motion, the court announced: "The motion of the defendant Lewiston National Bank is granted. . . . . The judgment in favor of the defendant Lewiston National Bank is allowed." On October 26, 1927, the court made and filed findings of fact and conclusions of law, and judgment was entered thereon. In the interim, on October 22, 1927, the appellants filed a motion for new trial. On January 28, 1928, the court made an order denying the motion for new trial.
Respondent makes a motion to dismiss the appeal, and likewise upon the merits contends for an affirmance of the order denying a new trial upon the same ground, that the motion for a new trial was premature and not in compliance with C. S., sec. 6890, having been made prior to the filing of the findings of fact and conclusions of law, and that the trial court had no jurisdiction to entertain a motion for a new trial.
C. S., sec. 6887, defines a new trial as follows: *244
"A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court or by referees."
C. S., sec. 6888, provides the grounds upon which "the former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved," and C. S., sec. 6890, provides that:
"The party intending to move for a new trial must, within 10 days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk and serve upon the adverse party a notice of his motion designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits, or the records and files in the action, or the minutes of the court."
In Tucker v. Hypotheek Mining Milling Co.,
It was in reliance upon the foregoing that, in Young v.Washington Water Power Co.,
In Caldwell v. Wells,
In Stewart Mining Co. v. Ontario Mining Co.,
It frequently happens that an oral opinion is announced from the bench prior to making findings of fact and conclusions, which may not, and under C. S., sec. 6866, need not, be made and filed within ten days of such announcement. If such announcement from the bench may start the ten days' period, under C. S., sec. 6890, within which to give notice of motion for new trial, then it must do so in every such event. The result would be, in many instances, that the party called upon to give notice of motion would be unable to anticipate what the findings would be, and it would be impossible to "specify the particulars in which the evidence is alleged to be insufficient" to "justify the decision" (C. S., sec. 6890), or in what particulars the decision "is against law," which is one of the grounds of motion for new trial (C. S., sec. 6888).
Upon authority and reasoning, it must be concluded that the "decision" referred to in C. S., secs. 6887, 6888, and 6890, in a case tried by the court without a jury, and decided upon an issue of fact, is a decision "given in writing and filed with the clerk," consisting of the facts found and the conclusions of law (C. S., sec. 6867), unless findings of fact are waived (C. S., sec. 6868).
In Smith v. Faris-Kesl Construction Co., Ltd.,
We conclude that the service of motion herein was premature, and not a compliance with C. S., sec. 6890; that the trial court was without jurisdiction to entertain the motion for new trial; and that this is ground for and compels affirmance of the order denying a new trial. The order is affirmed. Costs to respondent.
Budge, C.J., Givens and Wm. E. Lee, JJ., and Hartson, D.J., concur.