219 P. 203 | Idaho | 1923
— This is an original application for a writ of prohibition. The following facts are stipulated. March 24, 1923, the defendant judge addressed to counsel and delivered to the clerk for the purpose of making a minute entry a letter which closed as follows:
“I am in doubt as to the grounds set up in motion for new trial, as being sufficient to grant the same, and therefore will have to deny the motion upon those grounds.”
The same day the clerk entered the following on the minutes:
“In this cause, the intervenors motion for a new trial having been heretofore argued before the court and taken under advisement, the court at this time rendered its decision and denied the motion for a new trial.”
This minute entry was never signed by the judge. Subsequently a motion for rehearing was made and entertained
“Therefore, the motion for a new trial will be granted, and an order may be made in accordance with the above ruling. ’ ’
On the same day the clerk entered the following minute:
“In this cause, the defendants’ motion for a new trial having been heretofore argued before the Court and taken under advisement, the Court, at this time, rendered its decision, to wit: ‘Motion for new trial will be granted.’ ”
This minute entry was never signed by the judge. On June 4, 1923, the defendant judge signed and filed with the clerk an order which closed as follows:
“It is ordered, that the verdict and judgment in the above entitled action be set aside and a new trial be had, in said cause.”
The original judgment of the trial court was in favor of the plaintiff in this proceeding and he opposed the motion for a new trial. He seeks to restrain the defendants from proceeding with a new trial on the ground that the defendant judge denied the motion on March 24, 1923, and thereafter had no jurisdiction or power to reverse his action and grant a new trial. The case is submitted to us on the application, demurrer and stipulation.
C. S., sec. 7194, reads as follows:
“§ 7194. E'very direction of a court or judge made or entered in writing and not included in a judgment is denominated an order. An application for an order is a motion.”
An appeal must be taken from the order within sixty days after it is made and entered on the minutes of the court or filed with the clerk. (C. S., sec. 7152.) It is thus evident that an order must be in writing. It may, however, be made and filed with the clerk, in which event it must be signed by the judge, or it may be entered in writing in the minutes or journal of the court. (Perkins v. Loux, 14 Ida. 607, 95 Pac. 694.) There is no statute prescribing just how, or by whom the minutes or journal shall be kept. However, the
“The right to move for a new trial is a creature of the statute, and this statute provides for but one statement and one motion.
“The motion to vacate the order was equivalent in its effect upon the parties to a renewed motion for a new trial. It demanded another hearing of a question once determined, and resulted in the granting of a new trial which had been once refused. If this practice should be allowed, several consequences, not contemplated by the statute, would ensue. The limited time within which a motion for a new trial may be made would be practically enlarged, for there can be no good reason why the motion to set aside the order should be made within a limited number of days. The proceedings _ after judgment would be interminable, for the last order could be vacated upon motion of the losing party, and so ad infinitum,. There must be some point where litigation in the lower Court terminates, and the losing party is turned over to the appellate Court for redress. ’ ’
Under Const., art. 5, sec. 13, the legislature may regulate by law the method of procedure in the district courts. The granting of a new trial is regulated by C. S., secs. 6890 and 6891. Notice of intention to move for a new trial must be given within ten days after the verdict or after notice of the de
Defendants contend that, even if they are without jurisdiction to proceed with a now trial, prohibition does not lie, because there is a plain, speedy and adequate remedy by appeal. (C. S., sec. 7268; Rust v. Stewart, 7 Ida. 558, 64 Pac. 222; Olden v. Paxton, 27 Ida. 597, 150 Pac. 40; Natatorium Co. v. Erb, 34 Ida. 209, 200 Pac. 348.) Much depends upon the facts of the individual case. Where, as here, a district court has tried a case, entered judgment, denied a motion for a new trial, passing upon all questions, and now is about to try it again without any jurisdiction so to do, we do not regard the remedy by appeal as either speedy or adequate. The exercise of a sound discretion requires the granting of the writ. The alternative writ of prohibition heretofore issued is made permanent with costs to plaintiff.