Boreman, J.:
The plaintiffs (appellants) brought their action against the defendants for the possession of certain real estate, claiming ownership. The defendants filed their answer, cross-complaint, and amended cross-complaint, claiming to hold the property as the sole heirs of Brigham Shupe, deceased. Upon the case being heard, judgment was rendered for the plaintiffs. Thereafter the defendants made their motion for a new trial, which motion the plaintiffs moved the court to dismiss. The motion to dismiss was overruled, and the motion for a new trial was granted, and thereupon the plaintiffs appealed to this court from such orders.
The plaintiffs maintain that the court below had no authority to consider the defendants’ motion for a new trial, alleging that it was not filed in time, and no notice or statement was filed in time. The statute says that “the party intending to move for a new trial, must, within ten days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk, and serve upon the adverse party, a notice of his intention, designating,” etc. Laws Utah 1884, p. 246, sec. 536. The case was tried 'by the court without a jury, and the findings and decision and judgment were made and filed on the same day, the 25th of February, 1886. No notice of the decision was given to the defendants, as contemplated by the section of the statute referred to, but the defendants’ attorney, on the same day that the decision was rendered, wrote a note to the judge who tried the case, asking a stay of proceedings for 30 days, to prepare and file the motion and statement for a new trial, and the extension of time was granted. On the 26th of March, 1886, another order, dated 24th of March, 1886, was filed, giving 20 additional days from the date of the order within which to prepare, file, and serve notices, motions, and statements for a new' trial and appeal. The plaintiffs contend that these applications 'and orders for' the stay of proceedings were a waiver of the [433] notice of the decision, which the statute requires to be given. We have no doubt that the giving of the notice of intention to move for a new trial was a waiver of the notice of the decision, under the authorities referred to by the plaintiffs, (Cottle v. Leach, 43 Cal., 322; Thorn v. Finn, 10 Pac. Rep., 414;) and for some purposes the law does no doubt consider mere knowledge as equivalent to notice; but this does not hold good in all cases. It does not seem that the provision of the statute that the time to give the notice of the intention begins to run from the time of the notice of the decision, and that notices must be in writing, could be held to mean that mere knowledge is notice. Where the party has knowledge, and acts in the manner pointed out’ in the statute as to follow the notice, there would be good reason to treat his action as a waiver of the notice, or as equivalent to the notice. But we are not prepared to say that anything short of doing something which the statute points out as to follow or be preceded by the notice, would be or could be treated as a waiver of the notice. The party must do some affirmative act pointed out in the statute as not necessary to be done until after the notice. The statute says that the notice of intention to move for a new trial need not be made until after notice of the decision, but if the party proceeds to give his notice of intention without waiting for the notice 6f the decision, the inference would be that he had Waived the notice of decision. The asking of a stay of proceedings to prepare the notice of intention, etc., would seem not to be a waiver of the statutory right to have a Written notice before he should file or serve the notice of intention. This is the view taken by the supreme court of California, of a like statute, and it seems to be the most reasonable rule to reconcile the conflicting views. Biagi v. Howes, 66 Cal., 469, 6 Pac. Rep., 100; Carpenter v. Hewel, 67 Cal., 589, 8 Pac. Rep., 314; People v. Carter, 64 Cal., 561, 5 Pac. Rep., 260. The plaintiffs (appellants) further contend that the defendants’ motion for a new trial Should have been dismissed, because it was not prosecuted with diligence. There was a long delay in the disposition of the motion for a new trial, but no injury appears to [434] bave resulted. Tbe plaintiffs bad not, prior to action by tbe defendants, made any move to dismiss. Plaintiffs’ action was taken subsequent to action by tbe defendants. Tbe well-known burdened condition of tbe docket of tbe court may bave bad something to do with tbe delay in tbe bearing' of tbe motion; but whether this be so or not, tbe question of tbe want of diligence is one resting in tbe sound discretion of tbe court which passed upon tbe motion. Boggs v. Clark, 37 Cal., 236. In tbe absence of' anything showing that the court did not exercise a sound discretion, this court will not disturb tbe action of tbe court below, so far as it concerns tbe question of dili-’ gence.
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Boreman, J.:
The plaintiffs (appellants) brought their action against the defendants for the possession of certain real estate, claiming ownership. The defendants filed their answer, cross-complaint, and amended cross-complaint, claiming to hold the property as the sole heirs of Brigham Shupe, deceased. Upon the case being heard, judgment was rendered for the plaintiffs. Thereafter the defendants made their motion for a new trial, which motion the plaintiffs moved the court to dismiss. The motion to dismiss was overruled, and the motion for a new trial was granted, and thereupon the plaintiffs appealed to this court from such orders.
The plaintiffs maintain that the court below had no authority to consider the defendants’ motion for a new trial, alleging that it was not filed in time, and no notice or statement was filed in time. The statute says that “the party intending to move for a new trial, must, within ten days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk, and serve upon the adverse party, a notice of his intention, designating,” etc. Laws Utah 1884, p. 246, sec. 536. The case was tried 'by the court without a jury, and the findings and decision and judgment were made and filed on the same day, the 25th of February, 1886. No notice of the decision was given to the defendants, as contemplated by the section of the statute referred to, but the defendants’ attorney, on the same day that the decision was rendered, wrote a note to the judge who tried the case, asking a stay of proceedings for 30 days, to prepare and file the motion and statement for a new trial, and the extension of time was granted. On the 26th of March, 1886, another order, dated 24th of March, 1886, was filed, giving 20 additional days from the date of the order within which to prepare, file, and serve notices, motions, and statements for a new' trial and appeal. The plaintiffs contend that these applications 'and orders for' the stay of proceedings were a waiver of the [433] notice of the decision, which the statute requires to be given. We have no doubt that the giving of the notice of intention to move for a new trial was a waiver of the notice of the decision, under the authorities referred to by the plaintiffs, (Cottle v. Leach, 43 Cal., 322; Thorn v. Finn, 10 Pac. Rep., 414;) and for some purposes the law does no doubt consider mere knowledge as equivalent to notice; but this does not hold good in all cases. It does not seem that the provision of the statute that the time to give the notice of the intention begins to run from the time of the notice of the decision, and that notices must be in writing, could be held to mean that mere knowledge is notice. Where the party has knowledge, and acts in the manner pointed out’ in the statute as to follow the notice, there would be good reason to treat his action as a waiver of the notice, or as equivalent to the notice. But we are not prepared to say that anything short of doing something which the statute points out as to follow or be preceded by the notice, would be or could be treated as a waiver of the notice. The party must do some affirmative act pointed out in the statute as not necessary to be done until after the notice. The statute says that the notice of intention to move for a new trial need not be made until after notice of the decision, but if the party proceeds to give his notice of intention without waiting for the notice 6f the decision, the inference would be that he had Waived the notice of decision. The asking of a stay of proceedings to prepare the notice of intention, etc., would seem not to be a waiver of the statutory right to have a Written notice before he should file or serve the notice of intention. This is the view taken by the supreme court of California, of a like statute, and it seems to be the most reasonable rule to reconcile the conflicting views. Biagi v. Howes, 66 Cal., 469, 6 Pac. Rep., 100; Carpenter v. Hewel, 67 Cal., 589, 8 Pac. Rep., 314; People v. Carter, 64 Cal., 561, 5 Pac. Rep., 260. The plaintiffs (appellants) further contend that the defendants’ motion for a new trial Should have been dismissed, because it was not prosecuted with diligence. There was a long delay in the disposition of the motion for a new trial, but no injury appears to [434] bave resulted. Tbe plaintiffs bad not, prior to action by tbe defendants, made any move to dismiss. Plaintiffs’ action was taken subsequent to action by tbe defendants. Tbe well-known burdened condition of tbe docket of tbe court may bave bad something to do with tbe delay in tbe bearing' of tbe motion; but whether this be so or not, tbe question of tbe want of diligence is one resting in tbe sound discretion of tbe court which passed upon tbe motion. Boggs v. Clark, 37 Cal., 236. In tbe absence of' anything showing that the court did not exercise a sound discretion, this court will not disturb tbe action of tbe court below, so far as it concerns tbe question of dili-’ gence.
It was claimed by tbe defendants in their application for a new trial that tbe court, on tbe trial of tbe case, bad rejected evidence tending to show fraud as set up in tbe cross-complaint. Tbe appellants contend that such rejections were not grounds for granting a new trial, but were correct rulings; that the cross-complaint made no statement of facts that would constitute fraud. The cross-complaint, as amended, alleges in substance that tbe property belongs to tbe defendants as the sole heirs of Brigham Shupe, deceased — one defendant being tbe wife, and tbe other tbe child, of said Brigham Shupe, deceased; that tbe defendant Elizabeth Shupe, as administratrix, obtained an order for the sale of tbe real estate in question, and at tbe sale S. H. Higginbotham became tbe purchaser at $950 cash, subject to approval by tbe probate court; that tbe probate court delayed confirming tbe sale; that in tbe mean time Higginbotham became insolvent, and notified tbe administratrix and tbe ¡srobate court that he could not pay for tbe land, and that be repudiated tbe sale; that after this time tbe plaintiffs sued and obtained judgment against Higginbotham, and sold on execution such interest as Higginbotham bad in tbe property; that be falsely and fraudently represented to tbe probate court that Higgin-botham had an equitable interest which they bad bought at tbe sheriff’s sale, and were entitled to have tbe sale made by tbe administratrix to Higginbotham confirmed to them; that they intended to mislead tbe probate court by [435] snob, false and fraudulent representations; that Higgin-botham never paid said $950, or any part of it; that said plaintiffs never paid said sum or any part of it; that plaintiffs well knew that said Higginbotham had never paid any part of said money, and the probate court likewise knew these facts; that the probate court, at the solicitation of the plaintiffs, with these facts before it and before them, made a pretended order confirming said sale to the plaintiffs, in fraud of the rights of the heirs; that because the administratrix refused to make the deed to the plaintiffs without having received any pay therefor, she was removed from her position as administratrix, and another person appointed thereto, who did make the deed. These facts, if proven, would have shown a most bald fraud. They would have shown that the plaintiffs were endeavoring, through the forms of law, but without a shadow of right, moral or legal, to appropriate the property of others without having paid for it, and knowing that the party through whom they were claiming it had never paid for it. In passing upon the matters, the probate court had to decide that Higginbotham had such an interest in the real estate as was subject to levy and sale under execution, when that was a question for a court of more extended jurisdiction, and not one for the probate court — a court of but limited jurisdiction. The rejection of the proofs offered by the defendants, of the facts, was therefore error. The evidence should have been admitted. The motion for a new trial was properly granted.”
We see no error in the action of the court below in granting the motion. The order granting it is therefore affirmed. •
ZANE, C. J., and HendebsoN, J., concurred.