In Wayne v. Marquardt, 54 Idaho 211, 30 P.2d 369 (1934) this Court held that where a motion for new trial was not filed within the time allowed by the statute, "the district court was without jurisdiction and properly ruled in denying the motion for new trial."Summary of this case from O'Neil v. Schuckardt
March 5, 1934.
APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.
Appeal from an order denying motion for new trial. Order affirmed.
Walter H. Hanson and F.C. Keane, for Appellants.
Cite no authorities on points decided.
Gray McNaughton and James A. Wayne, for Respondents.
The motion for a new trial herein was ineffectual for any purpose for the following reason:
1. It was not filed within ten days after the decision of the court. (I. C. A., sec. 7-604.)
And if notice of motion was not given within prescribed time, the lower court has no jurisdiction to grant new trial, and appeal should be dismissed. ( Hess v. Swanson, 36 Idaho 135, 209 Pac. 721; Brockman v. Hall, 37 Idaho 564, 218 P. 188.)
The "decision" which starts the ten-day period mentioned in the statute, where the trial is without jury, consists of written findings of fact and conclusions of law filed with the clerk. ( Forsman v. Holbrook, 47 Idaho 241, 274 P. 111.)
This appeal is taken from an order of the district court denying appellants' motion for new trial. Respondents, in their brief, raise the question of the failure of appellants to file their notice of, or motion for new trial within the ten-day period provided by sec. 7-604, I. C. A., which, in part, reads as follows:
"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 motion. . . . ."
This action was tried to the district court sitting without a jury. The findings of fact, conclusions of law and decree of the district court were entered and filed January 27, 1933. Appellants did not file a notice of intention to move for a new trial, but did, on February 9, 1933, serve and file a motion for new trial. Thus neither a notice nor the motion was filed within the ten days provided by sec. 7-604, I. C. A.
This court is without discretion in the premises. The granting of a new trial by the district court is entirely a matter of statute and if the moving party had not complied with the provisions of the statute, as in this case, the district court was without jurisdiction and properly ruled in denying the motion for new trial. ( Hess v. Swanson, 36 Idaho 135, 209 Pac. 721; Brockman v. Hall, 37 Idaho 564, 218 P. 188.) The ten-day statutory period started running upon the filing of the findings of fact, conclusions of law and decree of the district court. ( Forsman v. Holbrook, 47 Idaho 241, 274 P. 111.)
Other assignments and grounds for dismissal, set forth by respondents, need not be considered for the noncompliance with the statute, above set forth, is jurisdictional in nature and, consequently, conclusive.
The order denying motion for new trial is affirmed.
Costs to respondents.
Budge, C.J., and Givens, Morgan and Holden, JJ., concur.