Union Pacific Railroad v. Byrne, 2 Wyo. 109

Union Pacific Railroad v. Byrne

2 Wyo. 109 | Wyo. | 1879

Peck, J.

This is an action of assumpsit for merchandise sold and delivered by Byrne to the Company. Tbe latter duly excepted, and duly presents to us under section 302 of tbe Civil Code, an exception to an order of tbe district court, overruling its demurrer to tbe petition; but tbe exception bas no merit.

Tbe defendant below answered over, an issue of fact was raised upon tbe answer, and at tbe July term for 1875 a jury trial was bad, and a verdict rendered for tbe plaintiff below for 1755.82, Judge Joseph M. Carey presiding; and tbe case was continued for judgment from term to term until tbe January term of 1877. Tbe record contains no evidence, requests to charge, or charge, and other than tbe exception relating to tbe demurrer, and an exception to an order overruling a motion for a new trial and allowing an entry of'judgment, no exception.

At tbe July term for 1875, tbe Company reasonably moved for a new trial on tbe several grounds: That tbe verdict was against evidence, was against law, was excessive, and that tbe court erred in refusing two several requests specified in tbe motion to charge; which motion, was continued for bearing until the January term for 1877, Judge Carey having in tbe meantime left the bench. On tbe 10th day of September, 1875, Byrne filed a remittitur of $355 upon tbe verdict, and a motion for judgment upon tbe balance. At that January term tbe Company brought on its motion for bearing before Judge E. A. Thomas, who bad succeeded Judge Carey, and was regularly bolding tbe term, who at the same term overruled tbe motion, and rendered judgment upon tbe verdict according to the motion for judgment, filed on September 10th, 1875; and tbe Company excepted to tbe order overruling tbe motion for a new trial, and granting judgment. Tbe company now claims that tbe motion could have been beard only by tbe judge *111wbo tried tlie case; and as be had left office, that it could not afterwards be heard at all; and, as the mover was thus deprived of the benefit of his motion, that it was the duty of Judge Thomas to have ordered a-new trial, not upon the motion, but because the mover had lost its benefit by an uncontrollable cause, imputing to him no laches, and a new trial was necessary to the protection of its right by putting it where it might have been put, had its motion been competently heard. Assuming that the motion could have been competently heard only by the judge who tried the case,— and this point it is unnecessary for us to, and we do not pass upon — there are two answers to the claim that Judge Thomas should have ordered a new trial. Our answer is, the Company ashed him to hear its motion; if till then he had no jurisdiction over the motion, the want was waivable and the Company waived it, and its exception to his order is only an exception to his action on. the merits, after he had thus properly acquired jurisdiction; that if the Company desired to avail itself of a supposed right to a new trial, because there was in office no judge competent to hear the motion, it should have made a separate motion accordingly, and have appeared here with an appropriate exception to an order refusing it. It made no such motion, no such exception is before us, and this, party is not in' an attitude to complain on the ground now taken by it, that a new trial was not awarded.

Another reason is, that the motion thus far treated as a regular motion for a new trial, was not one; it was a mere statement of abstract propositions accompanied by no evidence for testing them, and therefore useless; it was a mere inchoate proceeding which the judge who tried the case could not have heard. All that any judge could properly have done with it was to have ordered it to be stricken from the files, as being nothing. Judge Thomas should have ordered it from the files; but, as he brought it to nothing, though by an irregular way, the Company has suffered nothing: and thus far the proceeding upon the motion presents no grounds for reversal.

*112The Company further claims that, in hearing the motion upon its merits, Judge Thomas should haye' treated the remittitur as an admission by Byrne that the verdict was excessive to an extent beyond the amount remitted. As without the remittitur there would be nothing in the record to indicate that the verdict was excessive as rendered, with the remittitur we can only see that it was excessive in the amount remitted; we therefore allow nothing to the plaintiff in error on this point.

It further claims that the judgment could have been entered up only on the order of the judge who tried the case. Where the basis of a judgment has been laid, the point for entering judgment has been reached, the order for its entry is a form, and any judge qualified to act in the case, may make the order. Nothing can be plainer in principle, nor more familiar in practice.

The record contains what it denominates a bill of exceptions. That proceeding is simply a recital of a motion for a new trial, the hearing and denial of it, and the exception to the order of denial and for judgment, as those particulars have been above detailed in this opinion; and purports to have been allowed by Judge Thomas.

As to this alleged bill, the record presents nothing more than it previously presents as to the motion and the proceedings upon it; is not a bill of exceptions either at common law or under the statute; is inchoate and meaningless ; could have been moved from the files at the will of the plaintiff below, and in no wise affaects the case, except to encumber the record.

The judgment is affirmed with costs, but without the addition of the five per cent, allowed upon dilatory appeals.

Judgment affirmed.