105 P. 55 | Idaho | 1909
— This is an action to recover the sum of $2,500 with interest. The plaintiff alleges that on September 9, 1903, at the request of the defendants, plaintiff paid to one A. N. Buchanan the sum of $2,500, which amount was paid in the form of a check drawn by plaintiffs on the Lewiston National Bank of Lewiston, ■ Idaho, in words and figures as follows, to wit:
“Lewiston, Idaho, Sept. 9th, 1903.
“The Lewiston National Bank pay to the order of A. N. Buchanan $2,500.00, Two thousand five hundred and no-100 dollars.
(Signed) “GEO. H. STOBEB.”
On November 23, 1908, counsel for appellants gave notice to respondent that on November 25th they would move for a continuance until the first day of the next regular or special term of said court, and that said motion would be based on the ground of the absence and inability to attend as a witness on November 27th, of defendant Fred T. Dubois, an important and material witness for the defense in the trial of said cause; and that on the hearing of said motion the defendants would use and rely upon all the records and files and the affidavit of Henry Heitfeld attached to the motion. This notice was followed by a motion for a continuance dated November 23,1908. The affidavit, upon which the motion was based, made by Henry Heitfeld, is in substance as follows: That he is one of the defendants; that Hon. Fred T. Dubois, the other defendant, resides in the city of Blackfoot, Bingham county, Idaho; that the defendants have a full and meritorious defense and have been so advised by counsel. That Fred T. Dubois is an important and material witness, and if present would testify that at no time or. place did he ever request the plaintiff in this
“Blackfoot, Ida., Nov. 19, ’08.
“Hon. Henry Heitfeld, Lewiston, Ida.
“Fred, in Springfield, Ill., owing to Doctor Dubois death. Impossible to meet you.
(Signed) “Mrs. FEED DUBOIS.”
That immediately upon receipt of said reply telegram, affiant wired the said Fred T. Dubois at Springfield, Illinois, advising him of the date set for trial and urging him, if within his power, to get to Lewiston, Idaho, on or before November 27, 1908; that since the date of sending said last-mentioned telegram to said Fred T. Dubois, at said Springfield, Illinois, affiant has received no reply whatever to said telegram; that the Doctor Dubois mentioned in Mrs. Dubois’ reply telegram is a brother of Fred T. Dubois, and affiant is informed that said Dubois is at Springfield, Illinois, for the purpose of attending the funeral and interment of the remains of his brother, and looking after certain interests at that point relative to the estate of his deceased brother; that should the said Fred T. Dubois reach Lewiston, Idaho, on or before the date of trial heretofore fixed by this court; affiant will be ready to go to trial; but if the said Dubois is still in the state of Illinois, he believes it impossible, or at least extremely improbable, that said Dubois can reach Lewiston at the time of said trial; that neither affiant or his counsel has been guilty of laches herein, and that this application for a continuance is made in good faith and not for the purpose of delay. That if a continuance herein be granted as prayed for, affiant will have the said Dubois present at the next term as hereinbefore set forth. This affidavit was sworn to on November 23d.
In support of the motion for a new trial, the appellants filed a number of affidavits made by Fred T. Dubois and others, in substance and effect showing the cause of his absence from the state, the death and attendance upon the burial of his deceased brother, the receiving of an injury which seriously crippled him, and his confinement and medical treatment for such injury, and the reasons why the telegram to' him was not delivered or reply made thereto, and a general statement of the facts which caused his absence and the reasons for his not appearing at the trial. The respondent made a motion to strike these affidavits from the files upon four different grounds: First, that the affidavits were improperly filed, for the reason that no notice was given of intention to move for a new trial, on account of any newly-discovered evidence or on account of accident or surprise; second, that the notice of intention to move for a new trial does not set forth or specify that the motion for a new trial will be based and made upon affidavits to be filed and served; third, for the reason that the time within which said affidavits could be filed has expired, and said affidavits were not filed within the time provided by law; fourth, for the
On March 1, 1909, the court made an order striking each and all of said affidavits from the files of said action. A bill of exceptions was prepared and allowed by the judge and filed in said cause, wherein the defendants excepted to the ruling of the court in striking said affidavits from the files. Afterward and on March 3, 1909, the court overruled the motion for a new trial and certified that upon the hearing of said motion, the papers used and considered consisted of “Statement of the Case, Bills of Exceptions, and Records and Files in the Action.”
In this court the respondent moves to strike from the transcript the notice of motion, motion, and affidavit upon which the continuance was asked, first, for the reason that said papers are not incorporated in and made a part of a bill of exceptions; second, the motion for a new trial, for the reason that the same is not properly a part of the transcript and is not incorporated in any bill of .exceptions; third, all those certain affidavits referred to, being the affidavits filed on motion for a new trial and stricken from the files by the trial judge, for the reason that they are not properly a part of the record on appeal and are not incorporated in and made a part of any bill of exceptions; fourth, the bill of exceptions purporting to show the ruling of the court upon the motion to strike, the affidavits referred to from the files, for the reason that the same was not properly settled by the judge, in that it appears upon the face thereof that it was settled and filed on the day after and not at the time the exception was taken, and was not served upon opposing counsel, and was settled without his agreeing thereto or having any notice, and was not settled according to the method provided in sections 4426 or 4430 of the Rev. Codes.
The first question for determination in this case is, whether the notice of motion, motion, and affidavit for a continuance are made a part or are incorporated in a bill of exceptions. This part of the motion is based upon the fact that such papers are not copied into the bill of exceptions.
The second part of the motion, to strike out the motion for a new trial, is also overruled. While our statute does not require that a formal motion for a new trial shall be in writing, yet it contemplates a motion for a new trial, and when such motion is put in writing and filed as a part of the records in the case, we think it proper to include the same as a part of the transcript; and that a formal motion, while not required, is very commendable practice.
The third ground of the motion we think should be sustained. Sec. 4439, Rev. Codes, provides the grounds upon which a new trial may be asked, among which are: “4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.” Sec. 4441 provides that “The party intending to move for a new trial must, within ten days after the verdict of the jury, .... or after notice of the decision of the court .... serve upon the adverse party, a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits, or the records and files in the action, or the minutes of the court or a bill of exceptions, or the statement of the case.” The judgment in this case was entered and filed on November 30, 1908. On December 2d, and within ten days, the appellant gave notice of intention to move for a new trial and served the same upon counsel for plaintiff, on the grounds: First, insufficiency of evidence; second errors of law occurring during
There is also printed in the record a motion for a new trial, filed February 15, 1909, stating the same grounds as are contained in the notice of intention, with this modification: “Upon newly discovered evidence which defendants could not with reasonable diligence produce at the trial of said cause, as shown by the affidavits of Fred T. Dubois, C. "W. Dowden, Mrs. Arthur Huntington, Dr. A. W. Lange-man, D. B. Hilbert, D. W. Greenburg, James Hayes, and Henry ITeitfeld.” Then follows this statement: “This motion is made and based on all of the records and files herein, a statement of the ease herein heretofore served on counsel for the plaintiff and deposited with the clerk of said court on February 4, 1909.”
This motion for a new trial, however, does not appear to have been served upon counsel for plaintiff, and cannot take the place of the notice of intention.
It will be seen by section 4441, supra, that the party intending to move for a new trial must, within ten days, serve notice, designating therein the grounds upon which the motion will be made and whether the same will be made upon affidavits. Referring to the notice of intention, it will be observed that it does not state that such motion will be made upon affidavits. Subdivision 1 also of the same section requires that if the motion is to be made upon affidavits, the moving party must within ten days after service, or of such further time as the court or judge may allow, file such affidavits with the clerk. As seen above, the notice was served on December 2d. If the application for a new trial
Counsel for appellant, however, relies upon an order made by the district judge on November 28th, and appearing in the record. A reference to this order discloses that the court on that day granted an extension of time of sixty days after the filing of the judgment, within which to prepare, serve and file a draft of a bill of exceptions or statement of the ease on motion for a new trial or both. But no extension whatever is granted to prepare or file affidavits on motion for a new trial. ¥e are forced to the conclusion that the affidavits stricken from the files by the district judge, at the hearing of the motion for a new trial, had no place in the files, and that the court committed no error in striking them from the files. The fact, however, that these affidavits were properly stricken from the files is not a reason why the bill of exceptions, containing such affidavits, should be stricken from the files, as this is the only method by which the ruling of the court, in striking such affidavits from the files, could be preserved in the record and brought to this court for review. While it is true that the bill of exceptions is dated one day after the ruling striking such affidavits, yet there is nothing in the record to show but that the bill was presented to the judge for signature at the time the decision was made, and the mere fact that it was signed one day after is not a reason why it should be stricken from the files, and it will be presumed that the court extended the time to the date when it was signed as authorized, under the provisions of section 4426. The record shows that the bill of exceptions was settled and allowed by the trial judge, and in the absence of a showing to the contrary, this court will presume that the trial judge found that the same had been served before the settlement was allowed, as this court will not presume that the trial judge settled the bill of exceptions without due and proper service thereof.
This brings us to the real question in this case, and that is: Was the showing made for a continuance sufficient?
It is the rule in this state that a motion for a continuance is addressed to the sound .discretion of the trial court, and
The motion for a continuance was made by both Henry Heitfeld and Fred T. Dubois, and the affidavit of Henry Heitfeld was made in support of the motion for a continuance. Prior to the time of making the motion for a continuance the issues had been joined. The defendant had denied in substance the allegations of the complaint, and the issue was presented as to whether or not the plaintiff had paid or advanced money to one A. N. Buchanan upon the request of the defendants, and had the defendants agreed to pay the same, and had the time of payment been extended, under a promise and agreement of said defendants to pay said money. From this answer it appears that the defendant’s presence at the trial would necessarily be of very great importance, not only to aid counsel but as a witness. The affidavit shows that it was agreed between the defendants that Dubois could and would be present at the trial of said cause, at any time upon receipt of a telegram giving him reasonable notice of the date of the trial. The cause was set for trial and a telegram sent to the defendant, Dubois, informing him of such fact. This telegram was not received by him, but his wife immediately sent a reply thereto, that her husband, Fred T. Dubois, one of the defendants, was in Springfield, Illinois, owing to Doctor Dubois’ death. It further appears that the Doctor Dubois, referred to, was a brother of the defendant, Fred T. Dubois. Upon receipt of this telegram, his codefendant, Heitfeld, wired Fred T. Dubois at Springfield, Illinois, advising him of the date set for the trial and urging him to be present, and received no reply. The affidavit further shows that Fred T. Dubois was at Springfield for the purpose of attending the funeral and interment of the remains of his brother and looking
While it is true that this affidavit does not go into detail with reference to the circumstances under which Fred T. Dubois left the state and went to Springfield, Illinois, and the reason for his detention there, yet from the very nature of the case, it is apparent that it was impossible for Heitfeld, his codefendant, to give in detail all of the circumstances which caused Dubois’ detention in Springfield. It is apparent, however, from the affidavit that Dubois was unable to be present at the trial. He was a defendant, a party interested in the trial and a witness for defendants; he had a right, unless he absents himself without reason, to be present, to advise and assist counsel as well as testify in his own behalf. From the nature of the answer, it would appear that the defendants had a good defense, if they were able to prove the allegations of such answer; and from the facts contained in the affidavit it is apparent that the defendants were acting in good faith in asking for the continuance. Sec. 4371, Rev. Codes, provides: “Either party may bring an issue to trial, or to a hearing, and in the absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with his ease,” etc. This section directly applies to the case now under consideration; that is, the plaintiff had a right to bring the case to trial in the absence of the defendant, Dubois, unless the court for good cause otherwise direct. In other words, if good cause is shown, then the court should direct a postponement.
We are unable to discover what more the defendant Heit-feld could have shown in his affidavit than he did show, under the peculiar circumstances of this ease. As said by the supreme court of California, in the case of Jaffe v. Lillienthal, 101 Cal. 175, 35 Pac. 636.
In line with the further discussion in that case, we may well observe that so far as the question of diligence on the part of ITeitf eld was concerned, no amount of diligence would have prevented the sickness or death of the defendant’s (Dubois’) brother. And the fact that the defendant Dubois was engaged in attending the interment of his deceased brother at the time when respondent claims he should have been present at the trial, we think is not a voluntary absence or one which would not induce a reasonable man to absent himself, under the circumstances, and is a sufficient legal reason why the cause should have been postponed. If the defendants have a meritorious defense, as they alleged in their answer and in the affidavit for a continuance, then they should have an opportunity to present the same in court, unless without reason or excuse they refrain from doing so; and we think, under the facts contained in this affidavit, that the defendants have been prevented from having their day in court. (Morehouse v. Morehouse, 136 Cal. 332, 68 Pac. 976.) The judgment is reversed and a new trial ordered. Costs awarded to appellants.
Petition for rehearing denied.