(Download) "State Ex Rel. King v. District Court" by Supreme Court of Montana " eBook PDF Kindle ePub Free
eBook details
- Title: State Ex Rel. King v. District Court
- Author : Supreme Court of Montana
- Release Date : January 05, 1939
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 63 KB
Description
Prohibition ? New Trial ? Order Granting Motion After Court had Lost Jurisdiction ? Notice of Decision of Court ? Statutory Method Exclusive ? Findings and Conclusions of Court Held Equivalent to Decision ? Function of Writ of Prohibition. New Trial ? Effect of Failure of District Court to Pass upon Motion Within Fifteen Days. 1. After submission of a motion for a new trial, it must, under section 9400, Revised Codes, be decided within fifteen days, or it will be deemed denied by operation of law, and the court loses jurisdiction to do anything further in the case. Same ? Statutory Method of Making Known Decision of Trial Court on Motion for New Trial Exclusive. 2. The method for making known a decision of the district court on a motion for new trial, as prescribed by section 9400, supra, i.e., either by entry in its minutes or by writing made in chambers in any county of the state where the judge may be, filed with the clerk of the court of the county where the action is pending, is exclusive. Same ? Notice of Motion for New Trial ? Waiver. 3. Section 9399, Revised Codes, dealing with notice of motion for a new trial and declaring that the movent must within ten days after return of the verdict or after receiving notice of the decision of the court, serve and file notice of motion for new trial, is intended for the benefit of the moving party and he may, if he chooses, waive the requirement of formal notice of the verdict or decision of the court. Same ? Findings and Conclusions of Court Held Equivalent to Decision ? Notice of Motion for New Trial not Premature. 4. Section 9399, above, provides in effect that (in a case tried without a jury) the party desiring to move for a new trial must within ten days after receiving notice of the courts decision serve upon the adverse party a notice of motion to move for a new trial. Movent filed such notice five days after service of notice of the courts findings of fact and conclusions of law upon him. In answer to the contention of his opponent that the notice of motion was premature, since made before the courts decision, and hence, in legal effect, no notice, held that the courts findings of fact and conclusions of law, though not constituting a judgment, were equivalent to a decision and that, therefore, the notice of motion was timely. - Page 477 Prohibition ? Availability of Appeal Does not Prevent Issuance of Writ if Court Because of Lack of Jurisdiction Unable to Render Valid Judgment. 5. While section 9861, Revised Codes, limits the application of the writ of prohibition to cases in which there is no plain, speedy and adequate remedy in the ordinary course of law, the remedy by appeal does not necessarily defeat relief by the writ; if in such a case it appears that the district court, sought to be prevented from proceeding further, cannot render a valid judgment because of lack of jurisdiction, the writ may run to end litigation and save expense. New Trial ? Order Made Without Jurisdiction ? Writ of Prohibition Will Undo What was Done and Prevent Further Proceedings. 6. It is the office of the writ of prohibition to give complete relief; hence where it was sought to annul an order granting a new trial made two days after the fifteen-day period within which it could be made under section 9400, Revised Codes, had expired, as made without jurisdiction, the writ, when issued, will not only undo that which has been done but prevent further proceedings in the matter looking to a new trial.
 "State Ex Rel. King v. District Court" by Supreme Court of Montana " eBook PDF Kindle ePub Free){kind=link}