Laird v. Ashley , 1 Iowa 570 ( 1855 )

Wright, C. J.

Tbe Code provides, that motions fora new'trial, or in arrest of judgment, must be made within a reasonable time, and at tbe term of tbe court at .wbicb tbe trial takes'place, section 1808. Under this section, it is clear that this motion was too late, unless tbe leave, alleged to bave been given counsel at tbe previous time, extended tbe time, and gave tbe right to be heard at tbe special term. Had tbe motion been made at tbe term at wbieb tbe trial took place, it might regularly bave been continued to tbe next term, for argument and decision. So, also, if it appeared that tbe opposite party consented to tbe giving of such time, they could not now complain. Or, if it was disclosed that a motion bad been actually made, and had been lost or mislaid, or tbe clerk bad omitted to make tbe proper entry, it would present a different question. None of these things appear; but on tbe contrary, it was conceded that no motion was made at tbe trial term, and it is allowed at tbe subsequent term, on tbe sole ground, that tbe judge bad told defendant’s counsel that they could bave until that time to file such motion.- Counsel may bave been misled by this grant of time, and to deprive tbe defendant of the right to make such a motion, may operate seriously to bis prejudice; but we cannot but think that such practice would be too dangerous to. tbe rights of tbe parties, and too loose and uncertain in its operation, to be permitted. There should be a degree of practical certainty in all adjudications, and a time after wbicb tbe rights of parties accruing on judgments rendered, should not be disturbed, except in those oases, and under those circumstances, clearly warranted by law. Our law has wisely provided, that motions of tbe character now before us, shall be made at tbe trial term.. It should be a very clear case, indeed, that will warrant tbe entertaining of such motion after that time, for if allowed at the next term, so it might at tbe second, or any subsequent term; and a judgment plaintiff or defendant would never know when their legal rights were finally settled or concluded. Indeed, it may well be doubted, whether any power exists to entertain such motion, in the absence of agreement, when made after the adjournment of the term at which the trial takes place. If after the trial, there is not sufficient time to hear and determine such motion, that need not prevent the making of it, and its continuance to the next term. In this method, the judgment could be held in abeyance, and the rights of no party improperly prejudiced. The law primarily contemplates the disposition of such motions at the trial term, and they should never be continued, except from the necessity of the case. So, also, safety to parties, and judicial certainty, imperatively requires that all such matters should appear upon the record, and not be left to memory, and the leave of court only evidenced by parol.

Suppose that in this case, the plaintiffs, after judgment, and before the special term, had proceeded to collect their judgment, or had assigned it to a third person for a valuable consideration, as they well might, for its execution was in no manner stayed, and the record shows a final judgment, how could the money be re-collected, or the rights of the assignee be affected, by setting aside the judgment, and ordering a new trial ? And yet, if the court could set it aside before execution, so it might afterwards. It is claimed by the counsel, that this was a matter within the discretion of the court, and as nothing is shown to disclose that this discretion was improperly exercised, therefore the order cannot be disturbed. We are also referred to sections 1589, 1590, and 1591 of the Code, which give to the District Courts the power (by the establishment of proper rules) to supply certain defects, and to adopt such rules as may be deemed expedient, consistent with law, to carry out the purposes of the statute. To this we answer, that even if this was left to the discretion of the court, the exercise of such discretion in giving the time, should be manifested by the record, and not be left, as it was in this instance, existing alone on the verbal permission of the court. And again, we understand that the sections referred to, contemplate something established, known as a rule or rules, by which parties are to be governed, and with reference to which, they must act, and not a mere order in and for each case. The power there given, if dis^ creetly exercised, in accordance with the language and purpose of the Code, might assist much (in the language of the statute) “ in arriving at the prompt attainment of justice.” But then such rules, must be such as are prescribed, settled, and fixed, so as to become a part of the practice, applicable to each case, and not an order or direction made for each and every trial or adjudication.

We conclude, therefore, that the court had no right to entertain this motion, and that the order setting aside the verdict, and granting the new trial, was erroneous.

Judgment reversed,