190 Ky. 381 | Ky. Ct. App. | 1921
Opinion of the Court by
Affirming.
The appellant and defendant below, Sovereign Camp Woodmen of the World, on November 9,1901, issued and delivered its beneficiary certificate to A. William Hornung (whom we shall refer to as the insured), who was the husband of the appellee and plaintiff below, Benea Hornung, who was made the beneficiary therein, and in the certificate defendant agreed to pay, on certain conditions, to the beneficiary upon the death of the insured occurring after two years from the date of the certificate, the sum of $1,000.00 and the further sum of
The chief grounds relied on and the only ones possessing any conceivable merit are: (1) The failure of the court to permit competent evidence offered to be introduced by defendant, and (2) that the decision of the court upon the issues of fact presented by the pleading is not sustaiped or supported by the evidence, but for reasons hereinafter disclosed we do not deem it necessary to determine the merits of either of the grounds urged.
It is the settled practice in this jurisdiction, established by a long line of cases from this court, that in the absence of a motion for a new trial, or one filed in due
Section 342 of our Civil Code of Practice requires that motions for a new trial must be made at the term in which “the verdict or decision is rendered” and, except for the single ground of newly discovered evidence, the motion must be made “within three days after the verdict or decision is rendered, unless unavoidably prevented.” In a number of the cases, supra, it is expressly held that it is “imperative” that the motion should be' made within the three days provided by that section of the Code. This is tantamount to holding that the requirement for the motion to be made at the same term and within three days from the rendering of the verdict or the decision of the court is mandatory, and in the Seiler case, referred to, it is expressly held that, “This provision (section 342) of the Code is mandatory.” It is also well settled that the time for making the motion accrues upon the return of the verdict of the jury into court or, if the case is tried without a jury, when the court renders its decision upon the facts; or differently stated, the motion must be made within three days after the return of the verdict or the decision by the court upon the facts and not within three days after the judgment of the court pronounced upon the verdict or the court’s decision. Imperial Fire Insurance Co. v. Keirnan, supra; Boyle v. Stivers, supra; Ruhrwein v. Gebhart, supra, and The McCormack H. M. Co. v. Harned, 7 Ky. L. R. 139, (an opinion by Judge Richards of the Superior Court). In the Kiernan case the verdict was returned on January 13, 1883, but no judgment was rendered
With these principles of practice well settled it becomes necessary to examine the record in this case and determine whether defendant’s motion for a-new trial was made and entered within the time required by the Code as interpreted by the opinions, supra. The motion was not filed until November 16, 1918, one month after the rendition of the judgment, and one month and four days after the decision of the court upon the issues of fact involved, which we have seen is equivalent to the verdict of a jury. On the same day defendant entered motion to set aside the judgment entered on October 16, 1912, upon the grounds,' as claimed, that it had been filed by plaintiff’s attorney secretly and without knowledge on the part of defendant or its attorneys that it would be filed, and that the day upon which it was filed was not a juridical day or one when the court was in session and that defendant’s attorneys did not learn of its being filed until November 13, 1918, when the court was still in suspension pursuant to an order to that effect. Such order was. entered because of the prevalent influenza epidemic, and because it was necessary to enable attorneys to assist in necessary war work. The record discloses that on October 12, 1918 (the same day the court rendered its decision), at the request of the county health authorities', the sessions of the civil divisions of the Jefferson circuit court were “postponed until November 2, 1918;” that on October 26 an order was entered, concurred in by all the judges in the Jefferson circuit court, directing that a joint session be held on November 2, 1918, but that jury trials be postponed until November 11, 19.18; and on November 6 an order
It is extremely doubtful whether the sessions of the court and its conduct of all business (except the trial of cases) was. ever suspended after October 12, 1918, so as to prevent the filing of a motion for a new trial. Indeed it appears that various orders were made in sundry cases day after day, and the only regular business of the court actually suspended was the trial of cases. But, be this as. it may, it is affirmatively shown that only jury trials were suspended after November 2 till November 11, 1918, and that the court was in session for motions, orders and for all other purposes (except jury and perhaps other trials) on November 2 till November 6, constituting at least four juridical days after the one of October 12, upon which the decision of the court was rendered, and within three days of which the motion for a new trial should have been filed. If we eliminate all of the intervening days between October 12 (within three days from which the motion was due) and November 2, and the days following November 6 till November 23, there still appears more than three juridical days when the court was open for the transaction of business and within which the motion for a new trial could be legally filed. The attorneys for defendant had knowledge of the decision of the court rendered on October 12 and one of them endorsed the judgment which was filed on October 16, 1918, but it is due him to say that he claims that he did not agree for it to be filed until it had been submitted to. his co-counsel, which the latter says was never dope, but he states in an affidavit filed by him, “that ever since the 12th of October, 1918, this affiant has been watching this action and has been
The orders in this case with reference to the holding of court and suspending its business, or a part of it, were all upon the record and made at the time and place prescribed by the practice of the court, and we fipd nothing in the record “unavoidably” preventing the filing of the motion for a new trial within time. The prevention, to be “unavoidable” within the meaning of the section, must be something more than a failure to take notice of the sessions of the court. We need not attempt a concrete definition here, since it is sufficient to say that the facts in this record do pot bring defendant within the excusing provision of section 342 of the Code..
We therefore conclude that the motion for a new trial was not filed within the time required by law and that the court erred in permitting it to be filed apd treating it as timely made, which conclusion leaves only for consideration the sufficiency of the pleadings to support the judgment. Their sufficiency for that purpose is not questioned, as indeed it could not be, and the only alternative, under the rule of practice announced by the cases, supra, is to affirm the judgment, which is accordingly done.