Morris v. Lemp

The objections made by respondent to the form and contents of the notice of intention to move for a new trial and the motion for a new trial are highly technical, and not well taken.

It seems that the statement and affidavit presented by defendant on motion for a new trial were not filed and served within the ten day period prescribed by section 4441, Revised Statutes. On the other hand, the defendant procured orders from the judge who tried the case granting extensions of time as authorized and allowed under section 4441, supra. This case was pending in the district court of the third judicial district, but on the request of the judge of that district, the judge of the seventh district heard the case at Boise, and within the third district. Counsel for respondent contends that under the statute no court or judge has any jurisdiction to make an order extending the time for preparing statement and filing affidavits ' except “the court in which the action is pending or a judge thereof.” He accordingly insists that the action was pending in the *121district court of the third judicial district, and that although the judge of the seventh district had tried the case, that no extension of time could be granted by him, but must have been granted, if at all, by the judge of the third district. This contention is not tenable. For the purposes of the trial and determination of this case, and of all intermediate and ancillary orders necessary to the complete disposition thereof, the case was pending before the judge of the seventh judicial district, who had been called in to try and dispose of the same, and it was competent, and indeed his duty, to make all such orders as were requisite and necessary for that determination. (Eev. Stats., sec. 3925.)

This action was commenced by the plaintiff to recover a balance for wages claimed for services rendered defendant, running through a number of years. After the answer was filed, it appeared to the court and counsel that it would involve a long accounting between the parties, and the court accordingly appointed a referee, with directions that he “make findings of fact as to the book account of defendant and report the same to the court.” The referee examined the defendant’s books of account and heard the testimony, and reported his findings in accordance with the order. The court thereafter impaneled a jury and proceeded to the trial of the case. After the defendant had introduced and read in evidence the referee’s findings and report, he offered to prove by II. F. Lemp, a son of the defendant, that he, as defendant’s agent, had paid plaintiff the sum of $95 in cash, which was not on the books and was not taken into consideration by the referee or presented to him. On cross-examination, it appeared that this $95 payment had been entered by the witness in the cash-book at the defendant’s store. After considerable questioning by respective counsel and the court as to the nature of this item, and as to whether or not it had been entered upon the boobs, the court declined to permit evidence of this payment to go to the jury, on the grounds that it was an item that should have been presented to the referee. Defendant excepted to the ruling of the court, and assigns the court’s action as error. So far *122as the record discloses, ■ it is quite clear that this item was not taken into consideration by the referee nor reported by him in his findings. Indeed, it is shown by an affidavit made by the referee and presented to the defendant on motion for a new trial that this item was in fact offered in evidence by the defendant, at the hearing before the referee and objected to by plaintiff’s counsel on the ground that it was not a “book account” within the meaning of the order of reference, and was not contained in a book of original entry. We doubt, however, if this affidavit is properly before us, and its contents has, therefore, not been taken into consideration in the determining of this appeal. We are convinced that the court erred in not permitting the defendant to present his evidence as to this $95 payment. .Since the evidence of this payment was excluded by the trial court, the plaintiff never had an opportunity to rebut the same, and of course we are not informed as to whether or not the defendant in fact should have such a credit. The plaintiff would have been entitled to rebut this evidence by showing either that he never received the payment, or, if he did, that it was in payment of some other account not covered by the action; or any other proper defense that he might have to such claim.

In view of the evidence as it appears before us in this case, we have concluded to remand the cause, with direction to the trial court to modify the judgment by reducing it in the sum of $95; provided, the plaintiff files a written consent thereto; otherwise to grant the defendant a new trial and allow the proofs to be introduced on both sides as to this credit claimed by defendant. Each party will pay his own costs incurred on this appeal.