13 Mont. 500 | Mont. | 1893
Respondent, by motion, urges the dismissal of this appeal on alleged grounds.as follows: 1. Because appellant, by leave of court, withdrew his motion for a new trial, and thereafter filed another motion in its stead, “ long after the time for filing notice of intention to move for a new trial had expired, as appears from the transcript on appeal ”; 2. Because “appellant consented that the court might pass on the motion for a new trial without taking time to consider the same, and that, so far as appellant was concerned, the motion might be then and there overruled by the court.”
It appears that the trial of this action resulted in judgment for plaintiff, and thereupon defendant, within the time provided by law, served upon respondent its notice of intention to move for a new trial upon certain grounds set forth, and thereafter, within the time required, prepared, served, and ob~
Bespondent’s counsel, in urging the dismissal of this appeal, insists that, by the withdrawal of the motion for a new trial by leave of court, appellant withdrew his notice of intention to move; that the notice of intention really constitutes the motion for a new trial, and a formal written motion is not essential; that, therefore, if the notice of intention to move constituted the motion, the withdrawal of the motion was in eftect, technically, a withdrawal of the notice of intention to move. We do not find such intendment in the fact that in addition to his notice of intention to move for a new trial, setting forth the grounds thereof, accompanied by the statement of the case “specifying particulars” relied on, appellant prepared, in writing, a formal motion, and, apparently not being satisfied with the motion first prepared, withdrew it, by leave of court, and substituted another formal motion for a new trial in its stead. We see nothing improper in this practice, nor any ground or implication whereby we could justly interpret the withdrawal of the first motion as a withdrawal of the intention to move, which is the very foundation of the whole proceeding. It is true, as respondent’s counsel concede, that, strictly, a formal written motion for a new trial is not essential to the proceeding; that is, the proceeding is not defective if the hearing is brought on by application of counsel to the court for a new trial, based upon the notice of intention to move, and the record, statement, bill of exceptions, or affidavit (section 298, Code Civ. Proc.), used in support of the motion ( Wallace v. Lewis, 9 Mont. 399;
The second alleged ground upon which respondent relies to dismiss the appeal is that appellant consented to the order overruling his motion for a new trial, citing several cases wherein courts of last resort have declined to review an order or proceeding entered by consent of the party affected thereby. We readily concur in the proposition that a party would not be entitled on appeal to a review of an order of proceeding to which he consented; that is, where it appears that the complaining party assented to the substance and effect of the decision, he would not be entitled to a review thereof on appeal. We must therefore first ascertain whether the conduct of appellant has been such as to fairly justify the conclusiou that he so consented to the disposition of his motion for a new trial. The record entry quoted above recites that the motion was, “by consent, submitted to the court without argument”; but this entry is supplemented by stipulation in which counsel for appellant admits that, when said motion was submitted and ruled upon, appellant said that the “court might pass upon said motion then and there, without taking time to consider the same, and that, so far as defendant was concerned, the motion might then and there be overruled.” The record further shows that, immediately after the overruling of appellant’s motion for a new trial, its appeal was perfected from the order.
Upon careful consideration, we are unable to find in the showing on this point such tendency as would warrant the interpretation urged by respondent, or the dismissal of the appeal. It is one thing to consent to the conditions on which a controversy is to be determined, adjusted, or settled, and another to ask a court to make a formal ruling upon a proceeding which liad been fully considered in that court, so as to enable the party feeling aggrieved to appeal for a review of the questions involved. We think appellant’s conduct and suggestions at the time of submitting the motion for new trial signify the latter intention only.
Order denied.