Opinion
Application for a writ of prohibition to restrain the respondent from proceeding in the hearing of a motion for a new trial in an action entitled White v. Gutenberger.
COUNSEL:
Wilbur F. George, for Petitioner.
Grove L. Johnson, for Respondent.
OPINION
THE COURT On appeal from the Justice's Court upon questions both of law and fact, the action White v. Gutenberger was retried in the Superior Court, and a judgment therein rendered in favor of the plaintiff, the petitioner [14 P. 88] for prohibition. The defendant Gutenberger served a notice of intention to move for a new trial, specifying that said motion would be heard upon a statement of the case, but such notice was never filed. No draft statement of the case for new trial was ever served or filed by the defendant in said action. Neither the plaintiff, White, nor his counsel ever stipulated that the statement of facts on which the cause was tried should be adopted as the statement on motion for new trial, nor was it ever agreed between White and Gutenberger, or their respective counsel, that the motion should be heard, although the notice of intention was not filed.
The notice of intention to move for new trial was served July 10, 1882. The present proceeding was commenced May 5, 1886.
December 15, 1885, plaintiff White moved to dismiss the motion for new trial on the grounds: 1. No notice of intention had been filed; 2. No statement had been served or filed, or any affidavits, etc.
The Superior Court has no jurisdiction to hear and determine the motion.
Ordered and adjudged that the writ issue prohibiting said Superior Court and the judge thereof, as prayed for in the petition herein.