24 Mont. 501 | Mont. | 1900
after stating the case, delivered the opinion of the Court.
It was held by this Court in Whitbeck v. Montana Central Railway Co., 21 Mont. 102, 52 Pac. 1098, that an appealable order, regularly made, cannot be reviewed or set aside by the court making it, except in the cases provided by statute. In that case judgment had been rendered upon the pleadings in defendants’ favor. Subsequently, and before entry of the judgment, the court, concluding that it was erroneous, set it aside upon its own motion. This action was held to be in excess of jurisdiction, in view of the provisions of the Code of Civil Procedure prescribing a mode for securing a new trial and for a review of the judgment on appeal. The remarks made in the opinion touching the power of the district court
The notice upon which the proceedings in this case were based failed to comply with the statute, in that it was not given until nearly four months after notice of the decision, and designated no ground upon which a new trial could be granted. Even if the notice had been in time and sufficient in substance, the affidavit contained none of the grounds enumerated in Section 1171, of which alone the court could take notice. The fact that the referee had left the state without obeying the order made on December 12, 1897, though it resulted in inconvenience, or even injustice, to defendant, was no ground for a new trial. The trial had then been concluded, and the judgment entered. Nothing in the behavior of the referee, however inexcusable it may have been, tended to show that the findings and judgment were not entirely proper; nor did it furnish any reason why the plaintiffs should be arbitrarily deprived of their rights already declared. Otherwise, in any case in which a party should be prevented.by unforeseen misfortune from applying for a new trial under the statute, the court might, in its arbitrary discretion, grant him relief, and thus disregard the statutory limitation upon its power. The death of the referee, or the accidental destruction of his notes of the evidence, or any other similar occurrence, would appeal just as strongly to the court as does the situation here presented. The original motion having been abandoned, the right to move thereafter upon any ground was lost, and the order made upon the second motion was unauthorized.
Reversed.