Tucker v. Hypotheek Mining & Milling Co.
173 P. 749
Idaho
1918
Check Treatment
MORGAN, J.

This is an appeal from an order setting aside a judgment of nonsuit and dismissal and granting a new trial.

The right to a new trial is statutory. It is defined by sec. 4438, Rev. Codes, to be “a re-examination of an issue of fact in the same court after a trial and decision by a jury or court or by referees.” Sec. 4439 provides: “The former verdict *468or other decision may be vacated and a new trial granted on the application of the party aggrieved, for any of the following causes”: Then follows an enumeration of the grounds upon which application for such relief may be made.

These sections authorize the granting of a new trial only in case a former hearing has proceeded to a verdict, or its equivalent,- a decision of an issue, or issues, of fact by a court or referee. (People v. George, 3 Ida. 108, 27 Pac. 680; Caldwell v. Wells, 16 Ida. 459, 101 Pac. 812; Wagner v. Atchison, T. & S. F. Ry. Co., 73 Kan. 283, 85 Pac. 299; Chivers v. Johnston County Commrs. (Okl.), 161 Pac. 822, L. R. A. 1917B, 1296; Cowart v. Parker-Washington Co., 40 Okl. 56, 136 Pac. 153; Abbey Land & Improv. Co. v. San Mateo County, 167 Cal. 434, Ann. Cas. 19150, 804, 139 Pac. 1068, 52 L. R. A., N. S., 408; Gregory v. Gregory, 102 Cal. 50, 36 Pac. 364; Harper v. Hildreth, 99 Cal. 265, 33 Pac. 1103; Foley v. Foley, 120 Cal. 33, 65 Am. St. 147, 52 Pac. 122.)

Appellant’s motion for nonsuit admitted the truth of every material fact which the evidence introduced by respondent tended to prove, and presented only a question of law for determination. (Southern Idaho Conference Assn. etc. Adventists v. Hartford Fire Ins. Co., 26 Ida. 712, 145 Pac. 502, and cases therein cited; Warner v. Darrow, 91 Cal. 309, 27 Pac. 737.) There has been no trial of an issue of fact and, therefore, the court had no power to entertain or grant a motion for a new trial.

The order appealed from is reversed. Costs are awarded to appellant.

Budge, C. J., and Rice, J., concur.