Wright v. Mathews

28 Mont. 442 | Mont. | 1903

MR. JUSTICE ITOTLOWAY

delivered the opinion of the court.

This was an adverse suit instituted in the district court of Fergus county, Montana, pursuant to Section 2326 of the Revised Statutes of the United States (U. S. Comp-. St.. 1901, p. 1430), to determine the relative rights of the parties to certain mineral lands covered by conflicting claims. Upon the pleadings issues were joined, and the cause tried to the court and a jury. At the close of plaintiffs’ case, upon motion of the defendant, the court granted a nonsuit, and entered a judgment in favor of the defendant for costs, from which judgment and an order denying their motion for a new trial the plaintiffs appeal.

The respondent insists that the motion for new trial was properly denied, for the reason that the proposed statement on motion for new trial and the amendments offered thereto were not presented to the judge for settlement, or left with the clerk for the judge, within the time allowed by law or the order of the court. The record discloses that a decision was rendered in the cause on the 1th day of September, 1899, and on that day the plaintiffs were granted thirty days in addition to the time allowed by law to prepare, serve and file their statement on motion for new trial. The statement was served on defendant on October 9th, and on October 11 th defendant prepared and served upon the plaintiffs his amendments thereto. Nothing further was done until October 30th, when the proposed stater ment, with the amendments, were filed with the district clerk, and on October 31st the plaintiffs notified the defendant that they would not accept his proposed amendments. On November 11th plaintiffs gave notice that they would call the matter up for settlement on November 16th. The defendant thereupon filed and served written objection to the settlement of the proposed statement upon the ground that such statement and amendments offered thereto were not presented by the moving parties •to the judge, or delivered to the clerk of the court for the judge, within ten days after the date upon which the amendments were served upon them. This objection was by the court considered and overruled, but incorporated in and made part of the statement, and such statement was thereupon settled. On March 24, 1900, the court overruled plaintiffs’ motion for a new trial.

Section 1113 of the Code of Civil Procedure provides: “Sec. 1113. * * * (3) If the motion is to be made upon a statement of the case, the moving party must, within ten days after service of the notice, or such, further time as the court in which the action is pending or the judge thereof may allow, prepare a draft of the statement and serve the same, or a copy thereof, upon the adverse party. If such proposed statement be not agreed to, by the adverse party, he must, within ten days thereafter, prepare amendments thereto- and serve the same, or a copy thereof, upon the moving party. If the amendments be * * * not adopted, the proposed statement and amendments shall, within ten days thereafter, be presented by the moving'party to the judge, upon five days’ notice to the adverse party, or delivered to the clerk of the court for the judge.” The record, then, discloses that the plaintiffs did not comply with the requirements of this section, in this : that they did not, within ten days after October 17th, present the proposed statement and amendments to the judge, or leave them with the clerk for the judge. “A motion for a new trial is a statutory remedy, and can-only be invoked in the manner, within the time, and upon the grounds provided for in the statutes.” (Ogle v. Potter, 24 Mont. 501, 62 Pac. 920.)

The question raised here is analogous to one where the statement is not served within the time provided by law or the order of the court, and it has hecome the settled doctrine in this state that a disregard by the moving party of the plain requirements of Section 1173, supra,, will defeat his right to have the statement considered for any purpose.

The order of the district court overruling the motion for a new trial does not indicate the particular ground upon which it was made, and it is not necessary that it should, for-every legitimate intendment will be indulged in favor of the order. If it can be supported for any reason, it will be done. (Beach v. Spokane R. & W. Co., 25 Mont. 367, 65 Pac. 106.)

When the statement and proposed amendments, with defendant’s objection, were presented to the district judge, he could properly refuse to settle the statement, or he could settle the same, and deny the motion for a new trial. In this instance be followed tbe latter cqurse, and in so doing committed no error. (Sweeney v. Great Falls & C. Ry. Co., 11 Mont. 34, 27 Pac. 347; Power v. Lenoir, 22 Mont. 169, 56 Pac. 106; Beach v. Spokane R. & W. Co., supra; Burns v. Napton, 26 Mont. 360, 68 Pac. 17; Stromberg-Mullins Co. v. Dist. Court, 28 Mont. 123, 72 Pac. 412.)

This disposes of' tbe appeal from tbe order overruling tbe motion for a new trial, for, under tbe circumstances presented by tbe record, “this court must disregard tbe statement and all questions sought to be presented thereby.” (Power v. Lenoir, supra.)

There is in tbe record before us for consideration then only the judgment roll, and an examination of that discloses no error.

-Tbe judgment and order appealed from are affirmed.

Affirmed.