Julinson v. Anderson , 1 Indian Terr. 658 ( 1898 )

Springer, C. J.

( after stating the facts ). The ap-jellee in his brief calls attention to the fact that the motion 'or a new trial was not filed within the time required by law, and that, therefore, the bill of exceptions cannot b< considered on appeal. Section 5153 of Mansfield’s Digest i¡ as follows: “The application for a new trial must be mad< at the term the verdict or decision is rendered, and, excep for the cause mentioned in subdivision seven of section 5151 shall be within three days after the verdict or decision wa rendered, unless unavoidably prevented.'” The recordó this case shows that the motion for a new trial was not filec within the time prescribed by the statute. It should hav been filed within three days after the verdict, and it coul< not have been filed thereafter, except for newly-discovere< evidence or unavoidable delay ; and there is nothing in th record to show that these provisions of the statute wer complied with. The case of City of St. Joseph vs Robiso: ( Mo. Sup.) 28 S. W. 166, is cited for the purpose of suj porting this contention. That was an action of ejectmen for the recovery of the possession -of a small parcel c ground. There was a trial by a jury, and a verdict wa rendered for. the defendant and plaintiff appealed The verdict in that case was rendered on the 6t day of November; 1891, and the motion for a ne’ trial was filed on the 16th day of November, 1891 next thereafter. The court held that the motion was filel out of time, and the bill of exceptions could not be consider ed by the supreme court; that it should have been filel within four days after the verdict, under section 2243 of tbi Revised Statutes of Missouri of 1889, and could not be filel thereafter. The same decision was made in Maloney vs Railway Co. (Mo. Sup.) 26 S. W. 702. In the case of Nichols vs Shearon, 49 Ark. 75, 4 S. W. 167, the suprerr court of Arkansas held that section 5153 of Mansfield’s D gest requires that a motion for a new trial, except it be fc newly- discovered evidence, must be made within three, daj after the verdict or decision, unless unavoidably prevente! In that case the supreme court stated: “No showing! nade why the motion was not made earlier. And, besides, he defendants had, for a consideration, of which they revived the benefit, abandoned in open court their right to nsist on their motion. They are estopped by the record, ,nd by their own agreement, to reopen the case ; there be-ng no effort to show that they were deceived or misled by my artifice.” That case was decided at the November erm, 1886, of the supreme court, prior to the time when the ection of Mansfield’s Digest to which reference has been lade was put in force in the Indian Territory. Congress, herefore, having put said section in force in the Indian Arritory after this decision of the supreme court of Arkan-as, the provision came to the Indian Territory with the onstruction given to it by the supreme court of that state, 'he motion for a new trial in the case at bar not having een made within the time required by section 5153 of Mans-eld’s Digest, this court cannot consider the bill of excep-ons in the case; and the judgment of the court below aould be affirmed, and it is so ordered.

Clayton, Thomas, and Townsend, JJ., concur.