176 Wis. 646 | Wis. | 1922
The demurrer to- the return made the allegations therein contained verities. Such being the case, the plaintiff is met with this situation: If the motion be deemed to have been made under sec. 2878, Stats. 1921, then the return shows that on the 16th day of January, 1922, which was within sixty days, of the rendition of the verdict, and when the court was ready to announce its decision, “a representative of plaintiff’s attorneys informed the court that Judge Bancroft, who had charge of the motion, on behalf of the plaintiff and who participated in the trial as one of plaintiff’s attorneys, because of an engagement elsewhere in court could not be present, and asked that the matter, be further adjourned; that in pursuance to such request of plaintiff’s attorney the matter was adjourned to January 18, 1922.” At the latter date the decision of the court granting a new trial was made. From this return it clearly appears that the court had jurisdiction to act on the 18th of January because of the adjournment at plaintiff’s request. The statute specifically provides for adjournment or extension of time within which to act. It has also been held that the parties can waive the provisions of the statute and so confer jurisdiction upon the court to act after the sixty days have expired. Second Nat. Bank v. Smith, 118 Wis. 18, 94 N. W. 664; Kurath v. Gove A. Co. 144 Wis. 480, 129 N. W. 619; State ex rel. Kurath v. Ludwig, 146 Wis. 385, 132 N. W. 130. Likewise this court has held that a party at whose request an adjournment is taken cannot be heard to question the regularity of such adjournment. Second Nat. Bank v. Smith, 118 Wis. 18, 94 N. W. 664; Bailey v. McCormick, 132 Wis. 498, 112 N. W. 457.
If it be contended that no valid extension or adjournment was made because no written order was entered upon
A question is raised as to' whether sec. 2878 is applicable to cases in which a special verdict is rendered. It was held to be applicable to such a case in Kurath v. Gove A. Co. 144 Wis. 480, 129 N. W. 619, and in Notbohm v. Pallange, 168 Wis. 225, 169 N. W. 557. We see no reason for disturbing such rulings. The purpose of the amendment to sec. 2878 requiring a decision within sixty days of the rendition of the judgment is discussed in Kurath v. Gove A. Co. 144 Wis. 480, 483, 129 N. W. 619; and it applies as well to cases where a special verdict is rendered as to those in which a general verdict is taken. The law does not favor unreasonable delays in either case.
But it is quite evident from the affidavits upon which the motion was made that it was a motion for a new trial based upon newly-discovered evidence under sec. 2879, which motion could be made at any time within a year. Were there" any uncertainty arising from the contents of the affidavits, such uncertainty is effectively set at rest by the return, which states “that the argument and discussion of the motion for a new trial was wholly on the ground of newly-discovered evidence, and it was because of the newly-discovered evidence, as ‘ indicated by all of the affidavits filed on said motion, that led this court, in the exercise of its discretion, to believe that a new trial should be granted.” This is conclusive of the whole matter and establishes the trial court’s jurisdiction to act under sec. 2879 in granting a new trial on the ground of- newly-discovered evidence.
By the Court. — Writ quashed.