208 P. 952 | Mont. | 1922
delivered the opinion of the court.
This is an original application to this court for an order, under its supervisory power, to annul and set aside an order of the district court of Cascade county made by Honorable John J. Greene, as judge presiding, in the case of Peter Sinko v. John McClure, granting the defendant’s motion for a new trial.
The facts as they appear from the relator’s petition, summarized, are as follows: In an action pending in Cascade county, wherein Peter Sinko was the plaintiff and John McClure was the defendant, judgment upon a jury’s verdict was rendered in favor of the plaintiff and against the defendant on November 25, 1921, and thereafter, on November 29, 1921, the defendant McClure served and filed a notice of motion for a new trial. On January 20, 1922, there was served and filed a formal motion for a new trial. On January 26, 1922, an affidavit was made and filed by the plaintiff Sinko disqualifying Honorable J. B. Leslie, the judge presiding at the trial
Attached to the petition as exhibits are purported true copies of various pleadings, notices, orders, etc., referred to, therein. An order to show cause was issued by this court on June 1, 1922, returnable June 10, 1922. On the latter date the respondents appeared by counsel and moved to quash the order to show cause upon the following grounds: (1) That the facts in relator’s affidavit are not sufficient to warrant any relief; (2) that relator’s affidavit does not state facts sufficient to give the court jurisdiction to act; (3) that the full record
This court will not permit the purported “corrected transcript” to be filed, because: First, the order to show cause issued from this court directed to Judge Greene, and upon the original of which on June 2, 1922, he acknowledged due and legal service over his own signature, commanded that he “desist and refrain from any further proceedings in said cause. of Peter Sinko v. John McClure until the further order of this court,” and any action of his thereafter in connection with this cause, and any attempt on his part to correct the minutes of the district court so far as relate to that cause, were in entire disregard of the court’s order; and, second, this cause was submitted to this court on June 10, 1922, for final determination and judgment, at which time there was not any application or request made to file an answer or return to the order
According to the relator’s petition and the transcript of the . court minutes filed by the respondents on the return day, the motion for new trial was heard by Judge Greene, as the presiding judge of the district court, on April 22, and by him “taken under advisement.” Thereafter, and on May 13, the following order was entered in the minutes of the court:
“The motion for a.new trial in the above-entitled action having come on for hearing on the 22d day of April, 1922, before Hon. John J. Greene, and the same having been taken under advisement, the said motion is hereby granted and the verdict of the jury in said cause rendered is set aside and the defendant is hereby granted a new trial therein. Done in open court this 13th day of May, 1922.
“John J. Greene, Judge.”
It is clear from the foregoing that the motion was submitted to and taken under advisement by the district court on April 22, and that it was not decided until May 13—more than fifteen days after it was submitted.
The determinative question of law, therefore, in this case, is whether, by the failure of the district court to decide the motion for a new trial within fifteen days after the same was submitted, the motion for a new trial was by operation of law thereby denied, and the district court thereby deprived of jurisdiction to subsequently make an order granting a new trial. The other questions attempted to be raised by the relator have been expressly waived.
The statute (sec. 9400, Rev. Codes 1921) provides that “ * * * In ease the hearing is continued by the court, it
The statute provides that “if the court shall fail to decide the motion within said time,” that is, within fifteen days after the same is submitted, “the motion shall, at the expiration of said period, be deemed denied.” The word “deemed,” as used in legislative expressions, has always been held to be equivalent to or synonymous with the words “considered,”
The language of the statute is so clear and certain that the reasons for its enactment need not necessarily be considered; however, in this ease they are so illuminating of the construction following from the clear language of the statute as to be properly adverted to. The section of the statute under consideration was enacted by the seventeenth legislative assembly (sec. 8, Chap. 225, Sess. Laws 1921). Prior to its enactment there was no limit to the time a trial court might hold under consideration a motion for new trial. And it is common knowledge of this court and of the legal profession that there were sometimes vexatious, unwarranted, and unreasonable delays by trial courts in passing on such motions, and in order to expedite and speed up the practice, the state legislature, upon the recommendation of the Montana State Bar Association, passed the present law. Its object and its effect in expediting the practice are both at once obvious. After the submission of the motion, it must be decided within fifteen days or it is by operation of law denied. After the expiration of fifteen days, the motion
Respondents contend that by the phrase “shall * * * be deemed denied,” it was intended to leave it optional with the moving party whether he should consider the motion denied and appeal from the judgment, or permit the motion to remain under consideration by the court for so long a time as the court might desire to consider it. Such a construction or interpretation of the statute is not warranted either from the language employed or the history of the legislation. Such a construction would entirely ignore, not only the plain language of the statute, but also the very purpose and object of the legislative enactment.
Counsel for respondents complains that for this court to sustain relator’s contention would be to deprive defendant in the court below of his right of appeal from the judgment,, but such contention is without merit. Defendant, as well as this court, is bound by the statute. However, the defendant’s right of appeal from the judgment was not denied him. The statute gave him the right if exercised within the time prescribed by statute, and if he did not so exercise it, the fault is his own. No one has deprived him of the right. In connection with the contention made on this point, it is pertinent to call attention to the fact that there was considerable delay in bringing the motion for new trial on for hearing, one of the things the statute was designed to prevent. Where the fault for this delay lies does not appear, but it was defendant’s motion-—he was the one primarily interested in having it heard and determined. Some time after filing the motion, relator made and filed an affidavit disqualifying the judge who presided at the trial, but it does not appear that the defendant made any special effort to have the motion heard at any time earlier than April 11. No question of the time of the submission of the motion after its filing is raised or presented by the relator. Defendant McClure’s right of appeal did not expire until May 25. The motion was submitted on April 22.
Has the relator a right to relief by this proceeding? An appeal is given by statute from an order granting a motion for a new trial; but it is urged that the case is exigent, and the remedy by appeal is so inadequate as to require the use of this extraordinary legal proceeding. This court has many times declared the legal conditions requisite to the exercise of the remedy of supervisory control and of the legal principles applicable thereto. It is unnecessary to now restate them. Their application to the present case would seem obvious. The district court, in making the order purporting to grant a new trial, acted entirely without jurisdiction. The motion for new trial, as a matter of law, had been previously denied. Having been dénied, the district court could not affirmatively rule thereon 'by, in effect, reopening the matter—revoking the order which the law says was made denying the motion, and make an order granting a new trial. (Hayne on New Trial & Appeal, sec. 167.) It had lost jurisdiction, and its order of May 13 was void. It is urged by relator, and not denied, that the case is not one which on an appeal, • under the rules of this court could be advanced for hearing, and it is alleged that the judgment debtor could and would, before an appeal could be heard, sell and dispose of his property. The fact that an execution on the judgment has been issued and returned by the sheriff as unsatisfied, as disclosed by the record, does not affect the matter. To refuse relief in the case would put the relator herein, the judgment creditor, to the expense and subject him to the delay of an appeal from an order made without jurisdiction, pending which he would be delayed in the enforcement of his judgment; and meanwhile the ability, if there is any, to recover thereon, might be entirely lost to him. Not being entitled to any other writ, and the remedy by ap
It is ordered that a writ issue as prayed for and in conformity herewith.
Writ issued.