Opinion
No. 5417.
May 2, 1930.
APPEAL from the District Court, of the Ninth Judicial District, for Fremont County. Hon. C.J. Taylor, Judge.
Appeal from order granting motion for new trial. Affirmed.
F.A. Miller, B.H. Miller and J.R. Smead, for Appellant.
The notice of motion for a new trial, omitting the title of the court and cause, is as follows:
"To Ada Newby, plaintiff, and to F.A. Miller and B.H. Miller, her attorneys.
"You, and each of you, are hereby notified that the defendant will apply to the court for a new trial of the above entitled cause. Motion for a new trial will be. grounded upon the files and records in the case. The motion, together with grounds upon which it is made are hereto attached."
The above is not a sufficient "Notice of Motion." It designates no grounds upon which the motion will be made. It specifies no insufficiency or error in law. It has none of the essential requirements of the statute, either as to form or contents. It does not affirmatively appear to have been served, and it will be observed that it never was filed. ( Tucker v. Hypotheek Min. Mill. Co., 31 Idaho 466, 173 P. 749; 1 Hayne on New Trial, p. 58, sec. 12; Kelley v. Clark, 21 Idaho 231, .121 P. 95; Brockman v. Hall, 37 Idaho 564, 218 P. 188; Lucas v. City of Nampa, 37 Idaho 763, 219 P. 596; Strickfadden v. Greencreek Highway Dist., 44 Ida, 751, 260 P. 431; Hughes v. Alsip, 112 Cal. 587, 44 P. 1027; Burton v. Todd, 68 Cal. 485, 9 P. 663; Joyce v. White, 95 Cal. 236, 30 P. 524; State v. Red Lodge, 33 Mont. 345, 83 Pac. 642; A. M. Dillow Co. v. Monticello, 145 Iowa, 424, 124 N.W. 186.)
F.L. Soule, James G. Gwinn and G.W. Soule, for Respondent.
If the record shows that jurisdiction is acquired by filing the notice of motion for new trial in time, as the record does here, the court will presume regularity as to service and proceedings, and especially where appearance is made at the hearing on the motion, and is argued without objection. ( Steve v. Bonners Ferry Lbr. Co., 13 Idaho 384, 92 Pac. 363; Bohannon Dredging Co. v. England, 30 Idaho 721, 168 P. 12; Naylor v. Lewiston etc. Ry. Co., 14 Idaho 789, 96 P. 573; Stoddard v. Fox, 15 Idaho 704, 99 Pac. 122; Leggett v. Evans, 16 Idaho 760, 102 P. 486; Reclamation Dist. No. 556 v. Thisby, 131 Cal. 572, 63 P. 918; Patrick v. Morse, 64 Cal. 462, 2 P. 49.)
Appeal from order granting motion for a new trial. Appellant contends that the notice of motion for a new trial was so defective in form and deficient as to its contents that it could not confer jurisdiction on the trial court, and that, if it did confer jurisdiction, there was nothing before the trial court upon which it could grant the motion; in other words, that the notice of motion fails to state sufficient grounds for relief, and that the motion for a new trial was not served upon appellant.
The statute (C. S., sec. 6890) requires the party moving for a new trial to "file with the clerk and serve upon the adverse party a notice of his motion designating the grounds upon which the motion will be made."
Omitting the title of the court and cause and formal address, the notice reads:
"You, and each of you, are hereby notified that the defendant will apply to the court for a new trial of the above entitled cause. Motion for a new trial will be grounded upon the files and records in the case. The motion, together with the grounds upon which it is made are hereto attached."
According to the trial judge's certificate, the motion for a new trial was firmly stapled to the notice, and both were filed as one paper and were considered together by him as one instrument. In the motion for new trial, certain of the statutory grounds (C. S., sec. 6888) for a now trial are clearly set forth, as that the verdict is excessive and appears to have been given under the influence of passion and prejudice.
At the hearing on appeal, appellant's counsel admitted that he had received the notice of motion for a new trial in time, but that the so-called motion for a new trial was not attached to the notice when served, but that a copy was furnished him at the hearing. While the record itself is silent as to any service of the notice or motion, it affirmatively shows that appellant's counsel appeared in court and contested the motion.
The form of the notice is immaterial so long as it complies with the requirements of the statute. (See 46 C. J., p. 306.) The notice and motion in this case were considered as a single document, and together constitute a valid notice of motion for a new trial. (See Swallow v. First State Bank, 28 N.D. 283, 148 N.W. 630; Boarman v. Hinckley, 17 Wn. 126, 49 P. 226.)
If counsel for appellant was not in fact served with the complete notice of motion for a new trial, it was his duty to object on that ground at the time of the hearing of the motion, and a failure so to object at that time precludes objection being made in this court. ( Naylor v. Lewiston Southeastern Elec. Ry. Co., 14 Idaho 789, 96 P. 573. See, also, 46 C. J., 312; 1 Spelling on New Trial and Appellate Practice, sec. 375; 1 Hayne on New Trial and Appeal, Rev. ed., pp. 71-74; Town of Fairburn v. Brantley, 161 Ga. 199, 130 S.E. 67; Cereghino v. Cereghino, 4 Utah, 100, 6 Pac. 523; MacMahon v. Hull, 63 Or. 133, 119 P. 348, 124 P. 474, 126 P. 3.)
The reporter's transcript was not incorporated into the record here, and therefore we cannot consider any of the alleged errors committed by the trial judge in granting a new trial.
By motion to dismiss the appeal, respondent attacks the only assignment of error in appellant's brief to the following effect:
"The trial court erred in granting defendant's and respondent's motion for a new trial, and in making and entering an order to that effect."
This assignment is not sufficient, and does not comply with the requirements of Rule 40 of this court. ( Wheeler v. City of Caldwell, 48 Idaho 77, 279 P. 412; Oregon Short Line Ry. Co. v. Ballantyne, 48 Idaho 351, 282 P. 80; In re Skinner's Estate, 48 Idaho 288, 282 P. 90.)
The order granting a new trial is affirmed. Costs to respondent.
Givens, C.J., and Budge, Lee and McNaughton, JJ., concur.