Gelin v. Hollister , 222 Minn. 339 ( 1946 )

The provisions of L. 1941, c. 448, left but two possible remedies for judicial error as against the orders and judgments to which the statute applied. One was an appeal to this court; the other was, of course, a motion to vacate or modify the order or judgment presented to the trial court within the time for appeal. Obviously, it was the legislative purpose so to limit the time and to immunize such order and judgments from attack thereafter for judicial error in order to expedite the administration of justice in this class of cases. The legislature had the undoubted right so to legislate. It could limit the time within which relief might be sought to 30 days if it deemed it wise to do so. We should not, by interpretation, thwart that purpose.

Four days before the expiration of the 30-day period allowed by the statute for appeal, the notice was given appellants that four days after the 30-day period had expired a motion to vacate the judgment would be presented to the court. The mere service of the notice upon appellants and filing it with the clerk brought nothing before the court. The matter that was to be presented to the court came before it four days after the expiration of the time limited for relief. If we sustain the notice of motion as a presentation to the court within the 30-day period, we thwart the legislative purpose, because, if the notice advised an opponent of a presentation to the court of a motion to vacate on a day four days after the time for appeal expired, service of such a paper might be held to notify the opponent that such a motion would be presented still longer after the appeal period had expired. I think respondent Hollister sought relief after she was barred by the statute from doing so. The application was not made to the court until after the time for it had expired. Nornborg v. Larson, 69 Minn. 344,346, 72 N.W. 564, 565, does not hold otherwise, because in that case the record shows that the motion to which subsequent proceedings were connected was actually presented to the court before the expiration of the 30-day period.

In Gallagher v. Irish-American Bank, 79 Minn. 226, 231,81 N.W. 1057, 1058, there is no holding that the mere serving of a notice that a motion will be made amounts to an "effort to modify or amend the judgment."

We must not confuse the notice of motion with the motion itself.

"A notice of motion is distinct from the motion itself. A motion, as has been seen, is an application for an order, while a notice of motion is a mere warning that an order will be applied for and is designed to enable the opposite party to appear and contest the application. But a notice of motion is not process." 14 Enc. of Pl. Pr. p. 121.

"* * * there is nothing upon which the court can act until the motion is made in court and entered of record. Then, and not till then, the court has a cause before it, after which it is continued in court until it may be finally heard. Before the motion is thus made and entered of record, the defendant can take no step whatever in the matter. There is nothing to dismiss, for there is no process returned into court by which the court can recognize the case. The notice is a private paper in the hands of the party who gives it, and does not belong to the court until the motion is made and it is produced in evidence." Cheatham v. Howell, 14 Tenn. (6 Yerg.) 311, 312.

"* * * Counsel seem to confound the notice of motion with the motion itself. The notice is not a motion, and should not be so treated." Herrlich v. McDonald, 80 Cal. 472, 474, 22 P. 299.

Conklin v. Johnson, 34 Iowa 266, turned on the question whether filing a motion with the clerk constituted anappearance in court. There the defendant Johnson had been served in the action by publication. Under the Iowa statute, filing a motion with the clerk constitutes an appearance. The court did not discuss the question here presented. In the case at bar, the moving party was already in and had abundant opportunity to seek the remedy either by appeal or by making a motion prior to the expiration of time for appeal. We would certainly not say that a notice of intention to take an appeal four days after the time for appeal expired was equivalent to taking an appeal. To hold as do the majority is to condone dilatory practice.

For the reason that the motion was not presented to the court within the 30-day period within which an appeal could be taken, I think there should be a reversal.