186 P. 445 | Utah | 1920
The facts material to this appeal, in substance, are: The plaintiff commenced this action in the district'Court of Salt Lake county in December, 1915, praying judgment -against the defendant for damages for breach of promise to marry. Defendant answered the complaint by a general denial. The case was tried to a jury, which, on May 3, 1917, returned a verdict in favor of plaintiff for $5,000 damages. Judgment was duly entered on the verdict. The defendant, in due time, served notice of motion for a new trial upon the usual statutory grounds, among which was the ground that the damages allowed were excessive. The motion for a new trial was argued and submitted to the court on June 28, 1917. On October 5th following, the court overruled the motion for a new trial upon all grounds except that the damages awarded by the jury were excessive, and upon that ground, and on that date, entered an order "that a new trial be granted, unless the plaintiff within twenty days from date consents to a remission of the verdict in the sum of $2,000, thus, reducing the verdict to the sum of $3,000.” On October 20, 1917, plaintiff, through her attorneys, applied for and was given an extension of "fifteen days additional time within which to make an election on motion in the order granting a new trial. ’ ’ Thereafter, on November 10, 1917, counsel for plaintiff, for reasons then stated to the court, obtained an additional fifteen days time "in which to make an election in said case.” Thereafter, on November 23, 1917, plaintiff, through her attorneys,' served a notice in writing upon defendant’s counsel, stating therein that the plaintiff had elected to remit the sum of $2,000 from the verdict theretofore returned, and in said notice further notified counsel that plaintiff’s attorneys would apply to the court for an order denying the motion for a new trial thereto
The only errors assigned are: (1) That the court erred in granting plaintiff additional time on October 20, 1917, within which to make her election to remit $2,000 from the verdict; (2) that the court erred in granting plaintiff additional time on November 10, 1917, for the purposes aforesaid; ((3) that the court erred in permitting plaintiff to remit $2,000; and (4) that the court erred in entering judgment in favor of plaintiff and against the defendant for the sum of $3,000.
It is next assigned as error that the court erred in granting another extension on Novemb'er 10, one day after the previous extension had terminated. The record, however, shows that that extension was made upon a showing of inadvertence and excusable neglect. By doing that, therefore, the discretion and power of the court were invoked under
It is next contended that the court erred in granting plaintiff’s application to remit $2,000 from the verdict and judgment as originally entered. That application was also made pursuant to section 6619, and the facts, showing why the election by the plaintiff was not made within the time limit originally fixed by the court, and her excuse for not electing and
What has been said also disposes of the other two assignments. We remark that while the proceedings on the motion for a new trial in this case were irregular, yet the district court clearly acted within its power and jurisdiction in granting relief to plaintiff, and in view that it is not contended that errors of law or other irregularities occurred at the trial, and as found by the district court, and that the only defect in the proceedings was that in the judgment of the district court the jury had awarded plaintiff more damages than it'thought she should have, which defect was fully cured by the remittitur, it would almost be a travesty of justice to deprive her of the right to enforce her judgment. Moreover,' in view that no errors are complained of except the somewhat technical ones herein considered, this court may not reverse the judgment. We have frequently called attention to Comp. Laws Utah, sections 6622, 6968, the first of which provides that the courts must “disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the parties and no judgment shall be reversed or affected by reason of such error or defect”; and the second of
For the reasons stated the judgment should be, and it accordingly is, affirmed, with costs to plaintiff.
Felt v. Cook, 31 Utah, 299, 87 Pac. 1092; Tooele Imp. Co. v. Hoffman, 44 Utah, 532, 141 Pac. 744; Moyle v. McKean, 49 Utah, 93, 162 Pac. 63.