Jones v. Williamson

168 P. 110, 50 Utah 444, 1917 Utah LEXIS 89

• Court: Utah Supreme Court
• Decided: October 2, 1917
• Docket: No. 2854
• Status: Published

Opinion

McCARTY, J.

(after stating the facts as above).

We are confronted at the threshold 'of this appeal with a motion to strike the bill of exceptions. The ground alleged is that the “time had expired within which to serve bill of exceptions when the same was served.”

Judgment was rendered March 26, 1915. On March 30, Milton and Juel Moody filed their motions for a new trial, which were stricken April 30, 1915. It is, in effect, conceded that if the filing of these motions tolled the time for preparing, filing, and serving the bill of exceptions, the subsequent orders of the court granting additional time in which to file and serve bill of exceptions were timely, and that the order allowing and settling the bill of exceptions on September 1, 1915, as disclosed by the record, was regular and proper and that the motion to strike should be denied. Counsel for respondents contend that, as each of the appellants Juel and Milton Moody failed to serve his codefendants with notice of his intention to move for a new trial, the court was without jurisdiction to hear and determine the motions on' their merits.

The purpose of the statute requiring a party intending to move for a new trial to “serve upon the adverse party a notice of his intention” in that regard evidently is to give such adverse party an opportunity to appear and resist the motion, or take such action in relation thereto as he may deem proper. In the case at bar the defendants were in precisely the same situation respecting the means and opportunities of exercising and protecting their rights in the premises as they would have been if they had joined in the filing of one motion, or one of them only had filed a motion and served each of his codefen-dants with notiee thereof. It is not claimed, nor can it be successfully urged, that plaintiffs, or either of them, were in any sense, directly, remotely, or otherwise, prejudiced because defendant did not serve his codefendants with notice of his intention to move for a new trial.

1 The defendants joined in preparing the bill of exceptions and in serving it on the plaintiffs, and also joined in the appeal, and hence are properly before the court. The service, therefore, of notice by each defendant on his codefen-dants of his intention to move for a new trial would have been of no service or benefit whatever to either of them or to the plaintiffs, and hence it would have been a vain and useless act to make such service. This the law neither requires nor contemplates. Section 3294, Comp. Laws 1907, requiring a party intending to move for a new trial to serve upon the adverse party notice of such intention, is taken, substantially, from the statutes of California (Cal. Code Civ. P. section 659), and the Supreme Court of that state, in Barnhart v. Fulkerth et al., 92 Cal. 155, 28 Pac. 221, held, and we think correctly, that a failure to serve an adverse party with notice of intention to move for a new trial may be a reason for denying the motion and for affirming such order on appeal, but it does not constitute a reason for the dismissal of the appeal npon the ground that the court has not acquired jurisdiction to hear it. This doctrine is reaffirmed by the California court in Re Ryer, 110 Cal. 556, 42 Pac. 1082 and Johnson v. Phoenix Ins. Co., 146 Cal. 571, 80 Pac. 719. In the California cases the motions were to dismiss the appeal.

2 In this case, as stated, the motion is to strike the bill of exceptions. The principle involved, however, is the same. The striking of the motions by the trial court was tantamount to denying the same. The time, therefore, for filing and serving the bill of exceptions commenced to run from the time the order was made striking the motions.

The motion to strike the bill of exceptions is, for the reasons stated, denied.

In the assignments of error appellants assail the judgment on the ground that it is not sustained by the evidence. The evidence taken at the trial consists of about 220 pages of typewritten matter. We shall not attempt to set forth the evidence even in a condensed form. To do so would subserve no good purpose. We have examined the evidence with care, as the same appears in the bill of exceptions, and are clearly of the opinion that there is ample evidence to support the judgment. We are, however, of the opinion that the portion of the court’s fourth conclusion of law, wherein it is held "that plaintiffs are entitled to judgment against Milton Moody * * # for the sum of $879,” and the part of the decree based thereon, cannot be upheld. Neither the jury by their special verdict nor the court in its decision found any fact or facts that in any sense tend to support a judgment against Milton Moody for $879, or for any other sum of money, except for costs. By referring to the findings of fact set forth in the foregoing statement of the case it will be observed that they negative rather than support an inference or conclusion that plaintiffs, or any of them, are entitled to a money judgment against Milton Moody.

The cause is remanded with directions to the trial court to modify the conclusions of law and the decree by eliminating therefrom the $879, constituting the money judgment against Milton Moody. In all other respects the judgment is affirmed. Plaintiffs to recover costs.

FRICK, C. J., and CORFMAN, THURMAN and GIDEON, JJ., concur.