179 P. 826 | Mont. | 1919
delivered tbe opinion of tbe court.
Plaintiff brought this action to recover the balance upon a promissory note for $440 dated August 28, 1912, and due January 1, 1914, upon which a payment of $65.50 had been made. The answer of the defendants admits the execution and delivery of the note, the payment pleaded, and sets forth a counterclaim and attempts to plead an affirmative defense in bar. There was a reply to the new matter and the trial which followed resulted in a judgment for defendants for $294 and costs. Upon motion of plaintiff, the court granted a new trial, and defendants appealed from the order.
1. After the entry of judgment, and within the time allowed by law, plaintiff filed his notice of intention to move for a new
Our new trial procedure is statutory (Ogle v. Potter, 24 Mont. 501, 62 Pac. 920), and our statute does not require that a formal motion for new trial be made. The notice of intention performs the function of such a motion. (Wastl v. Montana Union Ry. Co., 13 Mont. 500, 34 Pac. 844; Needham v. Salt Lake City, 7 Utah, 319, 26 Pac. 920; East v. Mooney, 7 Utah, 414, 27 Pac. 4; Storer v. Heitfeld, 17 Idaho, 113, 105 Pac. 55.)
2. Complaint is made that the court heard and determined
While defendants were entitled to notice and an opportunity to be heard (sec. 7149, Bev. Codes), there is not anything in the recital above to indicate that they were not notified of the hearing, and since the court is one of general jurisdiction, the regularity of its proceedings will be presumed in the absence of a showing to the contrary. (Sanden v. Northern Pac. Ry. Co., 39 Mont. 209, 102 Pac. 145.)
If the motion was heard and granted without notice to [3] defendants, it was incumbent upon them to make that fact appear, and proper practice required them to move the court to have the order vacated as improvidently made, supporting their motion by affidavits showing that in fact notice of the hearing was not given. (Whitney v. Superior Court, 147 Cal. 536, 82 Pac. 37; 1 Hayne on New Trial & Appeal, sec. 164; 2 Spelling on New Trial & Appellate Practice, sec. 379.) Since the record does not disclose lack of notice, the error, if error was committed, is not subject to review upon this appeal.
3. As an affirmative defense in the nature of a plea in bar,
The note sued upon constituted a contract in writing between the parties, and the effect of the agreement pleaded was to alter it by extending the time of payment and changing the amount due. Section 5067, Revised Codes, provides: “A contract in writing may be altered by a contract in writing or by an executed oral agreement, and not otherwise.” Since the contract pleaded rested in parol and was entirely unexecuted, it was impotent for the purpose intended and constituted no defense. (Kinsman v. Stanhope, 50 Mont. 41, L. R. A. 1916C, 443, 144 Pac. 1083.)
4. The jury first returned a general verdict in favor of the
Section 6756, Revised Codes, provides: “When the verdict is announced if it is informal or insufficient in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out.” The first verdict was not informal and it covered the issues submitted by the court. When it was received and recorded it passed beyond the control of the jury and beyond the control of the court, except that upon proper motion for a new trial it might be set aside, but not otherwise. (Harrington v. Butte, 4. & Pac. Ry. Co., 36 Mont. 478, 93 Pac. 640.) The subsequent
There is no possible theory upon which the verdict in favor
We need not refer to the conflicting evidence with respect to the items constituting defendants’ counterclaim.
It was unnecessary for plaintiff to appeal to the court’s discretion, for he was entitled to a new trial' as a matter of right.
The order is affirmed.
'Affirmed.