ME. JUSTICE ANGSTMAN:
This is an original application for a writ of prohibition or other appropriate writ challenging the jurisdiction of the respondent court to grant a new trial in a certain action.
The facts out of which the controversy arises are these: The Dewey Milling Timber Products, a corporation, hereinafter called the Dewey Company, brought an action against relators in the respondent court to recover the purchase price of lumber alleged to have been sold by it to relators.
The complaint contained only one cause of action but alleged the delivery of lumber to relators on February 10, 1954, at their instance and request of a specified number of board feet of the reasonable and agreed value of $801.93 and on April 29, 1954, lumber of the reasonable and agreed value of $513.30.
The answer consisted of a general denial and affirmative allegations to the effect that relators did have business transactions with the Dewey Company but that relators have paid in full for what lumber was bought by them and that nothing remains due and owing from them.
The cause was tried to the court sitting with a jury. The jury found in favor of relators and against the Dewey Company. Judgment was entered on the verdict on January 27, 1955.
On February 3rd, the Dewey Company served and filed notice of intention to move for a new trial, motion for new trial and affidavits of Jack Foster and Harold Luchau in support of the motion.
The motion for new trial was based upon three grounds: First, accident or surprise which ordinary prudence could not have guarded against; second, newly discovered evidence, and third, insufficiency of the evidence to justify the verdict and that it is against law.
These grounds are paragraphs 3, 4 and 6 of E.C.M. 1947, section 93-5603. The first and second grounds, because of sec[577]*577tion 93-5604, are made only on affidavits, whereas the third ground above stated is made only on the minutes of the court.
After the filing of the motion for new trial and the accompanying affidavits on the part of plaintiff in the action in respondent court, relators on February 10, 1955, obtained an order from respondent court granting them ten days additional time within which to prepare, serve and file counter affidavits.
Thereafter and within the time allowed by order of the court relators filed counter affidavits by Clarence Tripp and Don Tripp, the last of which counter affidavits was filed on February 17, 1955.
Thereafter, and on March 11th, the Dewey Company served on relators a notice calling up the motion for new trial for hearing on March 15th at 9:30 a.m.
The minutes of the court show that the motion was argued by respective counsel on March 15th; that one witness, Lawrence Beavers, testified; that the court heard the testimony and being fully advised “said motion was submitted and by the court taken under advisement.”
On March 25th the court entered an order reciting that in the affidavit made by Harold Luchau it is stated that William Nicholas, “brother-in-law of the defendants, made the statement to said Harold Luchau that in the month of January 1955, and before the trial of this action, one of the defendants, Clarence Tripp, admitted to him that he owed the account involved in this action to the Dewey Milling Timber Products, the plaintiff herein. The statement is further made in this affidavit that if he is subpoened on a new trial, the said William Nichols will so testify.
‘ ‘ The Court is of the opinion it should have definitely before it the testimony of the said William Nicholas in this matter before determining this motion * * #”
The court thereupon ordered the issuance of a subpoena to William Nicholas, returnable on March 26, 1955, to relate the conversation referred to in the affidavit. The order recites that [578]*578counsel for both parties may be present and ask any relevant questions.
The minute entry of March 26th recites: “Oskar 0. Lympus, attorney for the plaintiff and the defendants and their attorney, "William F. Shallenberger, came into court, this being the time set for hearing the testimony of William Nicholas. William Nicholas and Clarence Tripp were sworn and testified, and the Court having heard their testimony and being fully advised in the premises, and respective counsel having agreed thereto, the motion of plaintiff for a new trial is deemed finally submitted. ’ ’
On March 28th, the court granted the motion for new trial and this proceeding followed.
Relators contend that the motion for new trial was not heard within the time required by law and hence that the order granting it was wrongful and without authority of law.
R.C.M. 1947, section 93-5606, requires the hearing on the motion for new trial “within ten days after the notice of motion is filed when the motion is made only on the minutes of the court and within ten days after the filing of affidavits and counter-affidavits when the motion is made on affidavits.”
As above noted the last counter affidavit was filed on February 17th and the hearing on the motion for new trial did not take place until March 15th.
However the time for filing counter affidavits had been extended by order of the court and hence we are called upon to determine whether the ten-day period mentioned in section 93-5606, supra, commnced to run at the time of filing the affidavits and counter affidavits or at the expiration of the time allowed for the filing thereof. The latter interpretation we think is the only rational one to be placed upon the statute.
Under R.C.M. 1947, section 93-5605, a party opposing the granting of a new trial may obtain thirty days additional time within which to file counter affidavits and then actually file no counter affidavits and if the time of filing marks the beginning of the ten-day period, it would then be too late to hear [579]*579the motion for new trial and the statute would operate as a trap and be subject to abuse preventing the actual hearing of the motion. Such an interpretation will not be adopted if the statute is reasonably susceptible of any other rational construction.
We think what the statute, section 93-5606, supra, means is that the affidavits and counter affidavits are not filed within the meaning of that statute until expiration of the time within which they may be filed.
When then did the time expire within which affidavits or counter affidavits might have been filed? R.C.M. 1947, section 93-5605, provides in part: “If the motion is to be made upon affidavits, the moving party must, within ten days after serving the notice, or within such further time not to exceed thirty days in all, as the court in which an action is pending or a judge thereof may allow, file such affidavits with the clerk, and serve a copy thereof upon the adverse party, who shall have ten days thereafter, or such further time not exceeding thirty days in all, as the court may allow, to serve and file counter affidavits.”
Under this section the time to file counter affidavits does not begin to run until expiration of the time for filing affidavits by the moving party. The word “thereafter” refers to the time allowed for filing affidavits and not to the actual time of their filing.
Here no additional time for filing affidavits by the moving party was granted. Its time for filing affidavits expired on February 14th.
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ME. JUSTICE ANGSTMAN:
This is an original application for a writ of prohibition or other appropriate writ challenging the jurisdiction of the respondent court to grant a new trial in a certain action.
The facts out of which the controversy arises are these: The Dewey Milling Timber Products, a corporation, hereinafter called the Dewey Company, brought an action against relators in the respondent court to recover the purchase price of lumber alleged to have been sold by it to relators.
The complaint contained only one cause of action but alleged the delivery of lumber to relators on February 10, 1954, at their instance and request of a specified number of board feet of the reasonable and agreed value of $801.93 and on April 29, 1954, lumber of the reasonable and agreed value of $513.30.
The answer consisted of a general denial and affirmative allegations to the effect that relators did have business transactions with the Dewey Company but that relators have paid in full for what lumber was bought by them and that nothing remains due and owing from them.
The cause was tried to the court sitting with a jury. The jury found in favor of relators and against the Dewey Company. Judgment was entered on the verdict on January 27, 1955.
On February 3rd, the Dewey Company served and filed notice of intention to move for a new trial, motion for new trial and affidavits of Jack Foster and Harold Luchau in support of the motion.
The motion for new trial was based upon three grounds: First, accident or surprise which ordinary prudence could not have guarded against; second, newly discovered evidence, and third, insufficiency of the evidence to justify the verdict and that it is against law.
These grounds are paragraphs 3, 4 and 6 of E.C.M. 1947, section 93-5603. The first and second grounds, because of sec[577]*577tion 93-5604, are made only on affidavits, whereas the third ground above stated is made only on the minutes of the court.
After the filing of the motion for new trial and the accompanying affidavits on the part of plaintiff in the action in respondent court, relators on February 10, 1955, obtained an order from respondent court granting them ten days additional time within which to prepare, serve and file counter affidavits.
Thereafter and within the time allowed by order of the court relators filed counter affidavits by Clarence Tripp and Don Tripp, the last of which counter affidavits was filed on February 17, 1955.
Thereafter, and on March 11th, the Dewey Company served on relators a notice calling up the motion for new trial for hearing on March 15th at 9:30 a.m.
The minutes of the court show that the motion was argued by respective counsel on March 15th; that one witness, Lawrence Beavers, testified; that the court heard the testimony and being fully advised “said motion was submitted and by the court taken under advisement.”
On March 25th the court entered an order reciting that in the affidavit made by Harold Luchau it is stated that William Nicholas, “brother-in-law of the defendants, made the statement to said Harold Luchau that in the month of January 1955, and before the trial of this action, one of the defendants, Clarence Tripp, admitted to him that he owed the account involved in this action to the Dewey Milling Timber Products, the plaintiff herein. The statement is further made in this affidavit that if he is subpoened on a new trial, the said William Nichols will so testify.
‘ ‘ The Court is of the opinion it should have definitely before it the testimony of the said William Nicholas in this matter before determining this motion * * #”
The court thereupon ordered the issuance of a subpoena to William Nicholas, returnable on March 26, 1955, to relate the conversation referred to in the affidavit. The order recites that [578]*578counsel for both parties may be present and ask any relevant questions.
The minute entry of March 26th recites: “Oskar 0. Lympus, attorney for the plaintiff and the defendants and their attorney, "William F. Shallenberger, came into court, this being the time set for hearing the testimony of William Nicholas. William Nicholas and Clarence Tripp were sworn and testified, and the Court having heard their testimony and being fully advised in the premises, and respective counsel having agreed thereto, the motion of plaintiff for a new trial is deemed finally submitted. ’ ’
On March 28th, the court granted the motion for new trial and this proceeding followed.
Relators contend that the motion for new trial was not heard within the time required by law and hence that the order granting it was wrongful and without authority of law.
R.C.M. 1947, section 93-5606, requires the hearing on the motion for new trial “within ten days after the notice of motion is filed when the motion is made only on the minutes of the court and within ten days after the filing of affidavits and counter-affidavits when the motion is made on affidavits.”
As above noted the last counter affidavit was filed on February 17th and the hearing on the motion for new trial did not take place until March 15th.
However the time for filing counter affidavits had been extended by order of the court and hence we are called upon to determine whether the ten-day period mentioned in section 93-5606, supra, commnced to run at the time of filing the affidavits and counter affidavits or at the expiration of the time allowed for the filing thereof. The latter interpretation we think is the only rational one to be placed upon the statute.
Under R.C.M. 1947, section 93-5605, a party opposing the granting of a new trial may obtain thirty days additional time within which to file counter affidavits and then actually file no counter affidavits and if the time of filing marks the beginning of the ten-day period, it would then be too late to hear [579]*579the motion for new trial and the statute would operate as a trap and be subject to abuse preventing the actual hearing of the motion. Such an interpretation will not be adopted if the statute is reasonably susceptible of any other rational construction.
We think what the statute, section 93-5606, supra, means is that the affidavits and counter affidavits are not filed within the meaning of that statute until expiration of the time within which they may be filed.
When then did the time expire within which affidavits or counter affidavits might have been filed? R.C.M. 1947, section 93-5605, provides in part: “If the motion is to be made upon affidavits, the moving party must, within ten days after serving the notice, or within such further time not to exceed thirty days in all, as the court in which an action is pending or a judge thereof may allow, file such affidavits with the clerk, and serve a copy thereof upon the adverse party, who shall have ten days thereafter, or such further time not exceeding thirty days in all, as the court may allow, to serve and file counter affidavits.”
Under this section the time to file counter affidavits does not begin to run until expiration of the time for filing affidavits by the moving party. The word “thereafter” refers to the time allowed for filing affidavits and not to the actual time of their filing.
Here no additional time for filing affidavits by the moving party was granted. Its time for filing affidavits expired on February 14th.
Counter affidavits then were required to be filed on or before February 24th.
Ten additional days were granted which extended the time to March 6th.
The motion which was heard on March 15th was in time and the decision thereon was likewise in time under section 93-5606, supra.
[580]*580The next contention is that the court erred in receiving evidence on the hearing on the motion. This point is well taken.
A new trial is purely the creature of statute. The procedure to be followed in moving for a new trial is found in the statutes, and not elsewhere. State ex rel. Sinko v. District Court, 64 Mont. 181, 186, 208 Pac. 952. In Montana the provisions of our Code which countenance a motion for a new trial make no provision for the introduction of oral testimony at the hearing, or for that matter at any other time.
To the contrary by statute the legislature has provided that such a motion be heard upon the minutes of the court, or upon affidavit, or upon both. Otherwise it may not be heard at all. Compare State ex rel. Sinko v. District Court, supra. Accordingly it is wholly immaterial whether the witness Nicholas testified over objection or by consent. In any case the court exceeded its jurisdiction in hearing this testimony at all. But if we consider the evidence taken as equivalent to affidavits, nevertheless they were unauthorized as not coming in time. The time for serving and filing affidavits and counter affidavits had expired.
Likewise if we consider the judge’s action in requiring Mr. Nicholas to be subpoenaed as equivalent to an order extending the time for filing affidavits the same was unauthorized' because coming too late.
An order extending the time for affidavits or counter affidavits in order to be effective must be made before the lapse of the time theretofore granted. Compare Hutchinson v. Burton, 126 Mont. 279, 247 Pac. (2d) 987.
Under the facts here shown it was error to receive the evidence on the hearing of the motion for new trial. Since neither the record of the trial nor the testimony given and heard on the motion for new trial is before us, we are unable to determine in this proceeding whether relators were adversely affcted by the evidence complained of even if the question were properly before us.
It is our view, however, that the court’s order granting a new [581]*581trial as to all the items involved in the action was made under a misapprehension of the law applicable.
The court’s order recites that “the evidence preponderates in favor of the plaintiff, at least as to the lumber alleged to have been sold on or about the 10th day of February 1954, one item $130.15 and the other item $671.78 * * * As to the lumber alleged to have been sold on or about the 15th day of December 1953, for which the plaintiffs claim to be due in the amount of $513.30, there is considerable conflict in the evidence here. * * * If the case only related to the amount claimed in the amount of $513.30, the court would leave the verdict stand in view of this conflicting evidence. However, in view of the evidence offered with reference to the claim of $671.78 and $130.15, totaling $801.83, the court is of the opinion, as stated above, the evidence preponderates in favor of the plaintiff. Of course, the court could not grant a new trial as to one item, but must grant a new trial as to all.”
The court erred in granting the new trial as to the item of $513.30. As appears from the court’s order that item was sustained by adequate proof. The court exercised no discretion in granting the motion so far as it affects the item of $513.30. As appears from the court’s order, it felt obligated to grant the new trial as to all issues though some of them if standing alone would have been approved. The court acted contrary to its judgment from misconception of the law. Contrary to the court’s ruling it would have been proper to grant the motion as to items totalling $801.93 and to deny it as to the other item since such issues are distinct and separable.
Prior to 1929 California had a statute identical with our section 93-5603 to the effect that “The former verdict or other decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes * * *” St. 1919, page 141. The courts of California have consistently ruled that under that statute the court is permitted to grant a motion for new trial as to part of the issues and to deny it as to the rest. San Diego Land & Town Co. v. Neale, [582]*58278 Cal. 63, 20 Pac. 372, 3 L.R.A. 83; Tumelty v. Peerless Stages, 96 Cal. App. 530, 274, Pac. 430, and cases therein cited.
So satisfied was California with that rule that in 1929 the legislature amended the statute so as to permit the moving party to apply for a new trial on part of the issues without opening up the whole case. West’s Ann. Code Civ. Proc. section 657. The amended statute and its purpose was considered in Quevedo v. Superior Court, 131 Cal. App. 698, 21 Pac. (2d) 998, 1000, where the court said: “The amendment was not necessary to enable a court to grant a new trial upon one issue when a new trial in general had been applied for, as such procedure had long been upheld. It would seem that the only reasonable purpose of the amendment was to meet the suggestion made by the Supreme Court in refusing a hearing in Donnatin v. Union Hardware & Metal Co. [38 Cal. App. 12, 175 Pac. 26, 177 Pac. 845], and to permit a party to avail himself of the right to apply for a new trial upon part of the issues alone without reopening the whole case.” The Donnatin case, 38 Cal. App. 8, 12, 175 Pac. 26, 177 Pac. 845, expressed doubt whether a moving party could apply for a new trial of only part of the issues. To remove that doubt the legislature of California amended its statute.
There are some eases sustaining the holding of the trial court but the prevailing rule is as above indicated. 66 C.J.S., New Trial, section 11, 87 et seq.
Relators had a remedy by appeal from an order granting a new trial, R.C.M. 1947, section 93-8003. Were this the only error attempted to be reviewed, we might decline to grant relief in this proceeding but since other questions were properly prsented by this application we thing the record discloses a sufficient exigency to warrant this court in granting full relief and in correcting this error under our supervisory powers within the reasoning of the cases of State ex rel. Crowley v. District Court, 108 Mont. 89, 88 Pac. (2d) 23, 121 A.L.R. 1031; State ex rel. Sinko v. District Court, supra; and State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac. 395.
[583]*583It lias been settled in Montana since State ex rel. Sinko v. District Court, 64 Mont. 181, 208 Pac. 952, was decided by a unanimous court on July 10, 1922, that a writ of supervisory control will issue out of this court to correct a patent injustice which otherwise is without adequate remedy in this court. The admitted facts here at bar can not be effectively distinguished from those of the Sinko case, unless it be that there the ease made for the writ of supervisory control was less exigent than that with which we are presently confronted.
State ex rel. Sinko v. District Court has stood for thirty years as the unchallenged law of this state. Upon that precedent the relators are in this proceeding entitled to rely, confident that the precedents announced by this court do not change with its personnel.
In the Whiteside case [24 Mont. 539, 63 Pac. 400] the court, speaking through Mr. Chief Justice Brantly, said of our supervisory power:
“Cases may arise also where some relief could be granted under some one of the other original writs named; but such relief would not be complete and adequate because of some error which could not be corrected by means of the limited functions of the particular writ, while the supervisory power is unlimited in the means at our disposal for its appropriate exercise. ’ ’
The fact that most of the relief here sought goes to the question of the lower court’s jurisdiction and hence is reviewable by prohibition, still under the Whiteside and Sinko cases, it is proper in order to grant complete relief for us to use our supervisory powers to reach a point not reviewable by prohibition. We have no hesitancy in holding that the court in granting a new trial so far as item $513.30 is concerned acted under a mistake of law. The supervisory powers of this court are properly invoked to obtain relief from this palpable error.
It should be noted that this court assumed jurisdiction of the case, by issuing the alternative writ, long before the time to appeal from the order granting the new trial had expired.
[584]*584The order granting a new trial is erroneous so far as it affects the item for $513.30. As to it the order is set aside. The order granting the new trial as to the other items was within jurisdiction and in accordance with the law.
It is so ordered.
MR, JUSTICES ANDERSON and DAVIS, concur.