Snider v. Rinehart , 18 Colo. 18 ( 1892 )

Mr. Justice Elliott

delivered the opinion of the court.

This was an action by Rose Rinehart, plaintiff below, to recover from the defendant Snider possession of certain real estate and damages for its detention. The complaint contains two causes of action; the first, which is all that need be considered on this appeal, is similar to a count in ejectment under our former practice. See Code of Civil Procedure, chap. 23.

There were two jury trials of the cause in the district court. The first trial occurred at the November term, 1887, and resulted in favor of the' defendant. Prior to the next ensuing term, March, 1888, the plaintiff paid the costs, and at said March term applied for and obtained a new trial, the first judgment being vacated in pursuance of the statute quoted below.

The second trial was had at- the March term, 1888; it resulted in a verdict and judgment for plaintiff.

The next ensuing term of the court after said second trial and judgment was the November term, 1888. Prior to said November term defendant paid the costs of the second trial, but made no application to have the second judgment vacated or for a new trial either before or during said November term, 1888.

During the following March term, 1889, that is, on April'29, 1889, the plaintiff applied to the court by motion for a writ of possession of the premises based upon the second judgment, the clerk having refused to issue such writ. After-wards at a special adjourned session of said March term held in June, 1889, defendant filed his counter-motion to vacate the judgment rendered at the March term, 1888, and for a new trial. The court denied defendant’s counter-motion, and granted plaintiff’s motion for a writ of possession. This action of the court is the only matter assigned for error.

The determination of the question thus presented depends upon the construction to be given to the following provision of the code:

“Sec. 272. Whenever judgment shall be rendered against either party, under the provisions of this chapter, it shall be lawful for the party against whom such judgment is rendered, his heirs or assigns, at any time before the first day of the next succeeding term, to pay all costs recovered thereby, and upon application of the party against whom the same was rendered, his heirs or assigns, the court shall vacate such judgment and grant a new trial in such case, but neither party shall have but one new trial in any case, as of right without showing cause. And after such judgment is vacated, the cause shall stand for trial, the same as though it had never been tried.”

It will be observed that any party against whom judgment is rendered in an action to recover possession of real property under chapter 23 of the code, may have one new trial “as of right without showing cause; ” and the terms upon which such new trial may be had are as follows: First, such defeated party, his heirs or assigns, must before the first day of the next succeeding term pay all the costs recovered by such judgment; second, he must apply to the court to vacate such judgment and grant a new trial. The time when such costs are to be paid is certain; but the time when such application is to be made is not stated in express words; the latter period of time must, therefore, be arrived at by a reasonable construction of the statute.

It is argued by counsel for appellant that the statute is so broad and unqualified that if the defeated party shall pay the costs within the prescribed time, his right to a new trial is absolute and beyond the discretion or judgment of any court, and that he is entitled to a new trial at any time when he shall make application for it. This argument, though strongly presented, does not seem altogether sound. Such a construction, if adopted, would enable the defeated party to reopen the litigation long after his opponent might reasonably consider it at an end. It is against the policy of the law and the rights of parties, that litigation should be thus protracted.

It is further urged that a voluntary payment of the costs ■by the defeated party within the prescribed time must be regarded as an application for a new trial. This view is against the letter as well as the reason of the statute, which provides that there must be an application by the defeated party, as well as the payment of costs, before the court is required to vacate the judgment and grant a new trial. The payment of costs is an obligation legally resting upon a defeated party who intends to submit to the judgment without further trial as well as upon one who intends to apply for a new trial. Hence, nothing definite is to be inferred from the voluntary payment of costs; such payment without further affirmative action cannot be considered as equivalent to an application for a new trial.

The statute does not specify either the time or the manner of making the application for a new trial; therefore, the usual practice appropriate to such proceedings may be resorted to. The vacating of a judgment and the granting of a new trial would, in the language of the code, be denominated an order; and an application for an order is a motion. Code, sec. 371. Hence, the application for a new trial may 'be by motion in the usual form, though we do not decide that the motion or the notice thereof must necessarily be in writing. If the defeated party, having paid the costs within the prescribed time, should within reasonable time in open court, in the presence of the opposite party or his attorney, make application to have the judgment vacated and a new trial granted, the provision of the statute would doubtless be sufficiently complied with and he would be entitled to have his application granted.

What is reasonable time within which to make application for a new trial? The statute must receive a reasonable construction — such as will promote its objects and tend to the furtherance of justice. In arriving at such construction, the language of the statute is to be considered, and also its subject-matter; and the construction given should be consistent with the language and purposes of the statute.

Ordinarily, the time within which motions for a new trial must be made is prescribed by the statute. In general, such motions must be made at the term when the verdict or judgment is rendered. Code, sec. 218; Gibson v. Manly, 15 Ills. 140. It is also a general principle that a defeated party desiring a new trial must be diligent in making application for it. Negligence or undue delay may defeat an application otherwise meritorious. It is the policy of the law to secure to parties litigant the termination of their legal controversies. Hilliard on New Trials, p. 495.

While the foregoing observations apply to motions for new trials for cause, it is obvious that they have an important bearing upon the construction of the statute under consideration. It is desirable that litigation respecting titles to land should reach a termination in reasonable time, as well as other controversies, though, on account of greater value and importance of real property and the greater difficulty in settling land titles, greater indulgence is extended in the matter of granting new trials. But no unreasonable delay is to be encouraged. In cases like the present, it is manifest that the statute contemplates giving the defeated party a longer time than the term at which the verdict and judgment were rendered, in which to make his application. The statute gives him the whole of that term and the whole of the intervening vacation before the next succeeding term in which to pay the costs, and it is only upon such payment that he can base his application for a new trial as of right without showing cause. Having the whole of the last day of the vacation in which to pay the costs as a basis for his right to a new trial, an application or motion made and filed on that day would certainly be in time. It was so held by the circuit court of the United States sitting at Denver, Mr. Justice Brewer presiding. See Keener v. U. P. Ry. Co. 34 Fed. Rep. 871.

We are of opinion, also, that an application for a new trial made at the opening of the term next succeeding the term at which the judgment was rendered, should be held to be made in time within the language, purpose, and policy of the statute. This would seem to be a reasonable and liberal rule in favor of the defeated party. But even such a rule would not avail appellant in the present case. He allowed the term at which the judgment was rendered and also the whole succeeding vacation to pass without making application for a new trial. He also allowed the whole succeeding term, and the whole vacation succeeding such second term, to pass without making application for a new trial. Thus two terms and two full vacations elapsed. Not until plaintiff had applied for a writ of possession at the third term, that is, at the second term after the judgment term, and not until an adjourned session of such second term, did appellant apply for a new trial. This was certainly too late; and it was not error to deny his application.

The judgment of the district court must be affirmed.

Affirmed.