115 P. 877 | Okla. | 1911
The verdict was returned and judgment rendered in the lower court on April 30, 1910, the term of court terminating with that date. Another term of court began on May 2, 1910, within three days after the former term closed, on which date the motion for a new trial was filed. Defendant in error moved to dismiss the appeal on the ground that such motion was not made at the term at which the verdict was returned and judgment rendered thereon. This was essential, unless the defeated party was unavoidably prevented from so doing. Section 5827, Compiled Laws of Oklahoma 1909; Missouri Glass Co. v. Bailey,
"The application for a new trial must be made at the term the verdict, report or decision is rendered, and, except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented."
Section 6094, Compiled Laws of Oklahoma 1909, provides:
"The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made: * * * For unavoidable casualty or misfortune, preventing the party from prosecuting or defending. * * *"
In Fudge v. St. Louis S. F. Ry. Co.,
"In this case the record shows that, although the motion for a new trial was not filed until after the adjournment of the term at which the verdict was given and the judgment rendered, yet that the court took up this motion and granted it. This the court might do if the party filing the motion out of time was unavoidably prevented from filing within the time. The failure to file within three days and within the term is not inexcusable. If a party is prevented from so doing by unavoidable circumstances, yet his motion may be heard. The court must determine whether such circumstances exist. In this case the record is silent upon the question as to whether there was sufficient excuse for not filing the motion within the term. Nothing whatever is said upon the subject. But all presumptions that are warranted by the record must be indulged in to support the correctness of the ruling of the court, and, so far as the record shows, abundant proof may have been introduced to show that the party was unavoidably prevented from filing his motion for a new trial within the term. We cannot presume error. If this evidence was not before the court, the record ought to have shown its absence in order to show error. It must be remembered that this case is one where a new trial was granted, and not one where it was refused. In a number of cases this court has decided that a trial court is justified in refusing a new trial where the motion therefor was not filed within the time prescribed by the section which we have cited, but in this case a new trial was awarded although the motion was filed out of time; but mere filing of the motion out of time does not necessarily show that the court might not consider it, and from the fact that the court did consider it — the record being silent — we must presume that the motion fell within the exceptions created by the statute itself, and that the facts showing such to be the case were proven, to the satisfaction of the trial court. It may be suggested that the cited section absolutely requires the filing of the motion within the term, and that the excuse of being unavoidably prevented applies only to the requirement to file within three days. There is some plausibility in such contention, but we prefer to hold that the excuse goes to both requirements, and, if unavoidably prevented from filing his motion for a new trial within the term at which the verdict or decision is rendered, still a party may have his motion heard. Such a construction seems to us fair and just. It is the policy of the law to give litigants abundant opportunity to present their grievances to the court, and there is no reason to think that the Legislature would wish to help out one who, through unavoidable *184 circumstances, had been prevented from filing his motion within three days, and not one who, through the same circumstances, had been prevented from filing within the term. In this case the court adjourned on the same day on which the verdict and judgment were rendered. After a full consideration, we hold that the party may be excused from filing his motion for a new trial at the term at which the verdict or decision was rendered by a showing of the same unavoidable casualty as would excuse him from filing such motion within three days after the rendition of such verdict and decision."
On rehearing, the same conclusion was adhered to, whereon the court further said:
"A rehearing was granted principally on the ground that there appeared to be something of a conflict in the former decisions of this court upon the proper construction of section 308 of the Civil Code (section 4756, Gen. St. 1901), relating to the time when the application for a new trial could be filed. It was thought to be a matter of so much importance to the profession as made it worthy of positive and final settlement. The question is: May the failure to file a motion for a new trial within the term at which the verdict, report, or decision is rendered be excused by showing that the delay was unavoidable? The case of Mercer v. Ringer,
The motion in this case is to vacate and set aside the verdict and judgment rendered, setting up various grounds under the statute wherein the court was alleged to have erred on the trial. The attorneys for the defendant in error moved to strike from the files said motion of plaintiff in error for the reason that the same was not filed in time, and offered evidence to show that no unavoidable casualty intervened. After hearing such evidence, without any objection being made by any one, the lower court said:
"I am satisfied there was no error in the trial of the case, and, as there was evidence to support the verdict, I would prefer to pass upon the motion for new trial and give the parties the benefit. You don't lose any of your rights. The motion to strike will be overruled, and exceptions allowed. The motion for new trial will also be overruled, and exceptions allowed."
Obviously the trial court found as a fact that the plaintiff in error was unavoidably prevented from filing his motion for a new trial at the term at which the verdict was returned, and for that reason he refused to strike the motion from the files. We are not prepared to say that he erred, as there was evidence reasonably tending to show the unavoidable prevention of its filing within time. The motion for new trial, however, failed to allege the unavoidable casualty, but the defendant in error having of his own motion introduced evidence without objection, from which the court evidently found the fact of unavoidable casualty, that cured such defect. After overruling the motion to strike from the files, the court then proceeded to rule on the motion for new trial, and evidently found that no error had occurred in the trial, and therefore overruled the same. *186
We are of the opinion where a party is prevented by an unavoidable casualty from filing a motion for a new trial within the prescribed three days and at the term at which the verdict was returned, that under proper allegations, supported by proof, a motion to vacate and set aside the judgment may be filed out of term time, and that the conclusion reached inSchallehn v. Hibbard,
TURNER, C. J., and DUNN and KANE, JJ., concur; HAYES, J., absent and not participating.