257 P. 465 | Mont. | 1927
A judgment is not final, for the purposes of an appeal, so long as there is pending a motion for a new trial and a motion to amend the judgment. (McClellan v. Wood,
69 P. 714; State ex rel. Heinze v. District Court,
The case of Romero v. McIntosh,
The first question to be considered is as to whether this court has jurisdiction to determine the matters presented by the appeals thus attempted to be perfected.
1. Was the filing of the notice of appeal and bond sufficient[1] to confer jurisdiction upon this court to determine the questions presented on an appeal from the judgment, when it appears therefrom that nearly ten months elapsed between the entry of judgment and such filing?
The right to an appeal in law cases did not exist at common law; it is a remedy which, in the absence of constitutional restrictions, the legislature may grant or take away, in its discretion, and as to which it may prescribe such restrictions and limitations as it sees fit. (2 R.C.L. 26; State v. Black,
Our Constitution (Art. VIII, secs. 2, 3 and 15) grants to this court appellate jurisdiction, to be exercised under "such limitations and regulations as may be prescribed by law," and under this constitutional provision and to the end that litigation shall not be unduly prolonged our legislature has wisely granted the right to appeal "from a final judgment within six months after the entry of judgment." (Sec. 9732, Rev. Codes 1921, amended by Chapter 39, Laws 1925; State Bank of New Salem
v. Schultze,
It is therefore apparent that the appeal from the judgment must be dismissed, unless we hold that the judgment entered was not a final judgment at the time of its entry and did not become final until the trial court had disposed of the motions for a new trial and a modification of the judgment.
2. On the effect of a motion for a new trial, or for a rehearing, on the statute limiting the time within which an appeal may be taken from a final judgment there are two diametrically opposite rules in existence in the United States.
(a) Where the motion for a new trial or for a rehearing is seasonably made and was necessary to the consideration in the appellate court of the questions involved in the appeal, the time is to be computed from the date of the denial of the motion; and (b) as the legislature has seen fit to fix an express and peremptory limitation upon the time within which an appeal may be taken, it has no flexibility and cannot be varied by extrinsic circumstances, but in all cases, regardless of what takes place after the entry of judgment, the statute begins to run from the date of entry. We have not attempted to determine which rule prevails in each of the states, nor on which side lies the numerical weight of authority. The first rule seems to have been adopted in Alabama, Arizona, Florida, Georgia, Illinois, Indiana, Louisiana, Kentucky, New Mexico, Nebraska, Utah and Washington, while the second prevails in California, Colorado, Iowa, North Dakota, Michigan, Ohio, Oklahoma, Oregon, Kansas, Wyoming and Texas.
In the Nebraska case of City of Lincoln v. First Nat.Bank,
The reason generally urged by those courts adopting the first rule is that the character of finality does not attach to the judgment until the motion for a new trial or a rehearing is disposed of, and, in the Indiana case of New York Ry. Co. v.Doane,
Many of the cases in which the first rule is declared were decided under the practice of moving for a new trial before the entry of judgment, and in Illinois it is declared that a motion for a new trial made after the entry of judgment will not suspend the judgment pending a ruling on the motion. (People v. Gary,
3. As the provision of section 9732 above is for appeal from a[2-5] "final judgment" within six months after its entry, it becomes material to determine what is meant by the term "final judgment."
Section 9313, Revised Codes of 1921, defines a judgment as "the final determination of the rights of the parties in an action or proceeding." Decrees in equity are judgments *538
within the meaning of this section (Raymond v. Blancgrass,
"A final judgment is not necessarily the last one in an action. A judgment that is conclusive of any question in a case is final as to that question. The Code provides for an appeal from a final judgment, not from the final judgment in an action." (State ex rel. Heinze v. District Court,
It is therefore apparent that, under our Codes, the judgment[6] of the trial court disposing of the questions presented on the trial and leaving nothing to be done except to take such steps as are necessary to carry the judgment into effect, it is the "final" judgment from which the legislature has granted the right to appeal and nothing done thereafter can deprive such judgment of its character of finality, so long as it remains unaffected by the further order of the trial court or the appellate court in proceedings authorized by statute. Pending a motion for a new trial or an appeal from an *539
order granting a new trial, an appeal will lie from the final judgment in the action, and the pendency of such matters neither vacate the judgment nor extends the time within which an appeal may be taken from the final judgment. (Henry v. Merguire,
It is held in California that a motion for a new trial may even be granted after the judgment has been affirmed on appeal. (Brison v. Brison,
This opinion was forecasted in Griswold v. Ryan,
4. We have heretofore discussed only the effect of a motion for a new trial and the cases cited deal with such a motion and motions for a rehearing, but the same rule applies to the motion to modify the judgment. (Russell v. First Nat. Bank,
Whatever may be the statutory provisions in jurisdictions holding to the first rule above referred to, our legislature has declared in plain and understandable language that a party may appeal within six months after the entry of final judgment, and to now hold that any motion made after the entry of such a judgment tolls the statute would be attempted judicial legislation. If the statutory requirement causes embarrassment to the profession, the relief must be sought at the hands of the law-making body of the state. (Gearin v. Portland Ry. etc.Co.,
5. It will be noted that plaintiff has attempted to appeal[7] from the order denying her a new trial in face of the fact that such an appeal has been done away with in this state. (Hoppin v. Long, above.) Counsel contends that Chapter 225, Laws of 1921, now section 9745, Revised Codes of 1921, abolishing such an appeal, is void as violative of section 23 of Article V of our Constitution. The title to the Act challenged is "an Act for the general revision of the Civil and Criminal Practice Acts, * * * relating to exceptions, bills of exceptions, new trials and appeals, * * *" amending certain sections and repealing certain sections.
Section 23, Article V, of the Constitution provides, in effect, that if an Act shall contain any subject not embraced in the title thereto, it shall be void as to that subject. The title of the Act in question sufficiently advised the members of the legislature and the people generally that it was intended thereby to revise the law relating both to "new trials" and "appeals," and was sufficient, without enumerating the sections to be amended or repealed, to meet the well-known purpose of the limitation placed on the law-making body by the Constitution. (In re Ryan,
The appeal from the order denying plaintiff a new trial must therefore be dismissed. *541
As to the attempted appeal from the order denying plaintiff's motion to amend the judgment by striking out the phrase, "on the merits," the appeal was timely, if such an appeal lies to this court. (Sec. 9732, above.)
However, whether right or wrong, the trial court declared the[8] judgment to be "on the merits" as its decision on the question; the phrase did not creep into the judgment by accident or mistake, and the court was powerless thereafter to strike out the phrase. Courts have power to amend judgments to the end that they will express what the court actually decided (Power Bro.
v. Turner,
We may say, in passing, that as the court denied defendants' motion for nonsuit and dismissed the action only after hearing all of the evidence, and the defendants only moved for dismissal after the court, for personal reasons, refused to entertain a motion for a directed verdict, to all intents and purposes the dismissal was upon a directed verdict and, therefore, "on the merits" in fact as well as by declaration of the court.
For the reasons stated, the judgment must be affirmed.
Affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MYERS, STARK and GALEN concur.
Rehearing denied July 7, 1927. *542