L. & N. R. R. Co. v. Board of Trustees of Elizabethtown District Public School , 105 Ky. 358 ( 1899 )

JUDGE DuRELLE

delivered the opinion of the court.

Appellee brought suit against appellant for taxes claimed to be due from appellant for school purposes for the years 1888 to 1892, inclusive; amounting, as Claimed, to $1,180.97. To the petition as amended a number of defenses were interposed, but, in our opinion, they are not necessary to be considered, for the decision of this case. The case was submitted to the court without a jury on December 14, 1895, upon the law and facts. From the record it appears that on the same day, which was the last day of the November term, a judgment was entered for plaintiff for $669.60, and by another order that on the same day the plaintiff filed motion and grounds for new trial. But upon the first day of the next (March) term an order was entered which shows that the appellant moved to set aside th'e order appearing on the order book of the court as of the last day of the November term; filing grounds and moving for a new trial. This order of March 3, 1896, discloses the circumstances under which the judgment and the order filing the motion and grounds for new trial were entered, as follows: “On the hearing of this motion, it appears that this action was submitted to the court on the last day of the last November term oí this court, with the understanding the record was to be taken by the judge to his home, in Leitchfield, and considered by him on briefs filed by the attorneys, and the record to be returned with the written opinion of the court, and judgment entered thereon as of the last day of the term; the records of the last term having been left unsigned by the judge. On the return of the case by the judge to the clerk, in vacation, the plaintiff’s attorney prepared the judgment of the court as entered on Order Book 31st, p. 410. The case rested here until on Monday the first day of this March term, 1896, when the plaintiff’s attorney moved the court to have the aforesaid motion for a new trial entered as of the last day of the last November term, — the order not having been signed by the judge,— to which the defendant, by attorney objected. The court overruled the objection and permitted said motion to be entered as of the last day of last November term, to which the defendant excepted; and now the court overrules the defendant’s motion to set aside said orders, to which the defendant excepts. The orders of the court made on the last day of the November term, 1895, have not yet been signed by the judge.” Subsequently the motion for new trial was sustained, another trial was had, before a jury, and a verdict rendered for $1,234.44, which was, on motion of appellee, remitted as to all over $1,180.97, the amount claimed in the petition.

The errors first complained of upon this appeal are the entry of the order filing the motion and the grounds for new trial on the first day of the March term, as of the last day of the preceding November term, and the order sustaining the motion for new trial. When the parties agreed that a judgment might be entered in vacation, in accordance with the opinion of the circuit court, as of the last day of the previous term, and that judgment was signed by the judge at the next term, it became a valid and binding judgment upon the parties, as of the last day of the previous term. We must assume that it was so signed: in the absence of anything in the record to show that it now remains unsigned; and this the recital by the court, in the order heretofore quoted, that the order book was at that date not signed by the judge, does not, in our opinion, show. The Code provisions as to motion for new trial require (section 342) that “the application for a new trial must be made at the term in which the verdict or decision is rendered; and, except for the cause mentioned in section 340, subsection 7, shall be within three days after the verdict or decision is rendered, unless unavoidably prevented.” This provision applies as well to decisions by the court to which the law and facts have been submitted as to an ordinary action. (Helm v. Coffey, 80 Ky., 176, and Houston v. Roach, 11 Ky. Law Rep., 52). Now, the motion for new trial in this case was, as matter of fact, and as found by the circuit court, not made until the first day of the following term. The understanding between the parties as to the entry of the judgment would seem to have embraced the right to enter, in connection with the judgment, such objections, exceptions, and motions for new trial, etc., as might be necessary or proper to the taking of an appeal, as well as the granting of an appeal to either party; and in fact the judgment did provide that an appeal was granted to each party. But it would seem, also, that such an agreement as to the entry of the judgment was a waiver by the parties of the right to enter a motion for a new trial as of the last day of the term, unless such motion were recited in the judgment entered in like manner as the order granting an appeal to each party was in fact embrace!! therein. And this rule can be applied nowhere with greater propriety than to a case like this, where the party which sought to set aside the judgment prepared and presented it to the clerk without embracing in it any recital of a motion for a new trial. This judgment was not only a judgment, but a verdict, as the case was submitted to the court upon the law and the facts. Had the verdict been rendered by a jury upon the last day of the term, the motion for a new trial must have been upon that day; and this though a motion for judgment non obstante was pending. (Ruhrwein v. Gebhart, 90 Ky., 147, [13 S. W., 447],

By no stretch of construction can the agreement and the understanding between the parties be made to embrace the right to either party to malee motions at the ensuing term, the right to make which would have expired by lapse of time. The only effect which that agreement can have, or could have been intended to have, was to give an order entered in vacation the same validity which it would have had if entered in term time. In accordance with the opinion by Judge Cofer in Bennett v. Tiernay (78 Ky., 584), it did have that effect when the judgment was signed by the judge at the next term. Not so, however, of the motion for a new trial, which the finding of the circuit court itself shows was not entered until the first day of the next term, and was tben, against appellant’s objection, ordered to be entered as of the last day of the preceding term. It follows, therefore, that it was erroneous to permit the filing of the motion for new trial, and to sustain it. For the reasons given, the judgment is reversed and the cause remanded, with directions to set aside the second judgment and the order granting a new trial, and to re-enter the first judgment.