66 So. 774 | La. | 1914
Statement of the Case.
Plaintiffs instituted a suit against the J. F. Ball Bro. Lumber Company, Limited, for damages, for the death of their minor son, through the alleged negligence of the defendant, and Oliver Watson and h,is wife, about the same time, instituted a suit against the same defendant and also against the Iron Mountain Lumber Company and the Natchez, Ball & Shreveport Railway Company, on behalf of
“Plaintiff * * * set his case for trial on the 5th day of June, 1912. Failing to appear, * * * the defendant called upon the plaintiff to prosecute the suit, and had the same dismissed as in case of nonsuit. It seems that defendant’s counsel, John C. Blackman, Esq., filed an application for a new trial, for plaintiff, and notified him that, if he had any reason for not being present, he would grant the new trial. It seems that there was some misunderstanding between counsel * * * and no agreement was reached and the case was not disposed of at that term of the court; nor was it continued by consent, and it was not disposed of at subsequent terms of the court; and, after the decision of the Supreme Court in the case of Watson versus the same defendant, plaintiff urged the trial and defendant excepted to the right of the court to consider the motion for a new trial, as the time had long since lapsed.
“Article 558 of the Code of Practice says:
“The party who believes himself aggrieved by the judgment given against him, may, within three judicial days after such judgment has been rendered, pray for a new trial, which must be granted, if there be good grounds for the same; provided, that said new trial shall be prayed for and passed on before the adjournment of the court.
“This provision of the Code of Practice makes it mandatory that the new trial shall be passed upon before the adjournment of the court; and (though) in some cases, it has been allowed to go over until the following term of court, by consent of parties, or, by the inaction of the judge, when called upon to decide the motion, I think the 25th (35th) La. Ann. case (page 1104) sustains the contention of the defendant in motion, for the reason that the facts here are about the facts in that case. So far as the signing of the judgment, on the day that it was rendered, and before the three days allowed for an application for new trial, is concerned that is frequently done, here in the country, to accommodate counsel who wish to leave the session of the court, or who are nonresident attorneys, but it docs not, and cannot, interfere with the motion for new trial; and, if the motion is sustained, and a new trial granted, the judgment is, of course, set aside; if the new trial is not granted, the judgment stands. I see nothing in the signing of the judgment, even though it be said to be premature, that interferes with any right that the plaintiff might have in the premises. For these reasons, I have arrived at 1he conclusion that the motion for a new trial should be 'overruled, as I have no authority, under the article 558 of the Code of Practice, to grant the same.”
Opinion.
“The contention of the relators is that, as the motion (for new trial) was not determined at the term at which the judgment was rendered, the judgment, though prematurely signed, has become final, and the motion for new trial could not 'be tried thereafter. They invoke the art of 1839 and articles 546 and 558 of the Code of Practice, and infer that, where the motion for new trial is not determined at the same term at which the judgment was rendered, it lapses and the judgment becomes at once final. The relators could not successfully invoke this rule, even if the law stood their construction, because they themselves consented to a continuance of the motion for new trial to the next term and cannot be permitted to avail themselves of their consent to the injury of the mover in the rule for a new trial.”
Proceeding, then, to show that the law invoked by the relators (apart from their consent) does not stand the construction placed on it by them, the court said:
*193 “It is remarkable that the articles relied on do not prescribe any penalty, and that, owing to this omission, cannot be considered as being penal or mandatory laws, enacted for the preservation of public order or good morals. The court cannot supplement the law and enact penalties where the Legislature has not deemed proper to append any. The provisions invoked are merely directory to the judge and designed to regulate the administration of his judicial powers or faculties and the discipline of his court. * * * The cast defendant has done everything which the law required of him. He has filed his motion in due time, has set forth plausible grounds, which were subsequently considered sufficient to justify a' new trial, and is in no way chargeable with laches. * * * I-Ie is entitled to the action of the court on his motion for new trial as much as the appellant is to an order of appeal on his demand for one. Neither the one nor the other can be made to suffer where, by no fault of theirs, the new trial was not allowed at the same term, or the appeal granted before the legal delay for appealing had elapsed.”
And the court refers to Succession of Gilmore, 12 La. Ann. 562, in which it was held (quoting from syllabus) that:
“A judgment signed before a motion for a new trial is overruled cannot be considered as having its effect until the motion is disposed of.”
A doctrine which is sustained by the rul- . ings in State ex rel. Wentz v. Judge, 35 La. Ann. 873; Durbridge v. State, 117 La. 841, 42 South. 337, and other eases.
It has frequently been held that, so long as a judgment remains unsigned, it remains open to revision, and hence that a motion for new trial may, in such case, be filed after the expiration of the delay by which it would otherwise be excluded. Smith v. Harrathy, 5 Mart. (N. S.) 321; Smelser, Syndic, v. Williams & others, 4 Rob. 152; Citizens’ Bank v. Bellocq, Noblom & Co., 19 La. Ann. 376; Thiele & Seiler v. Crutcher & Co., 20 La. Ann. 500; Johnson v. Gennisson, Id. 511. It has also been held that, though a judgment, prematurely signed, does not preclude the exercise, by the party cast, of the right to move, within the delay allowed by law, for a new trial, yet that, in the absence of such motion, the signing will become effective upon the expiration of such delay. Marigny v. Stanley et al., 2 La. 323; Hubbell v. Clannon, 13 La. 496. It follows therefore that the motion filed on behalf of plaintiff, by defendant counsel, operated as a bar to the signing of the judgment of nonsuit which the counsel had obtained, and that, notwithstanding the adjournment of the court without action on the motion, and notwithstanding that the judgment was actually signed, the signing was premature, because of the pendency of the motion, which kept it open to revision until it (the motion) was disposed of. It follows, also, that if, up to May 7th, when the motion was overruled, an original motion for new trial might have been filed, it was competent for plaintiff, up to that time, to file his supplemental motions, and hence that he was entitled to consideration with reference to the matters alleged in those motions as though they had been alleged in the original motion. We understand, from the reasons assigned by the trial judge, that he did not consider himself at liberty to inquire into those matters, but held, in effect, that he was without jurisdiction, and, as we are of opinion that he erred in so considering, it appears to us that the proper course to. pursue is to reverse the judgment appealed from and remand the case, in order that it may obtain — that which it has not yet had — a trial upon its merits.
It is therefore ordered that the judgment appealed from be set aside, and that this case be remanded to be proceeded with according to law and to the views expressed in the foregoing opinion.