CASES ARGUED AND DETERMINED IN THE Supreme Court of the Territory of Wyoming JANUARY TERM, 1883. KENT V. UPTON. (April 11, 1883.) NEW TRIAL WHEN MOTION TO BE MADE-DELAY 1. Comp. Laws, c. 13, § 308, providing that the application for new trial must be made at the term the verdict or decision is rendered, and within three days thereafter, unless unavoidably prevented, and section 309, providing that the application must be by motion, upon written grounds, filed at the time of making the motion, are mandatory, and a motion made after the expiration of this limit must show that the mover bad been theretofore unavoidably prevented. 2. A motion for leave to make a motion for a new trial is unknown to the law, and an order granting an ex parte oral motion to extend the time for filing à motion for a new trial, which is practically the same, was erroneous. tion to the stock of the said company and unpaid. The petition alleged that said Kent was the owner of 10 shares of the stock originally subscribed for by himself, and of 10 other shares purchased by him from Joslin & Park, and for which a new certificate was given, upon which 20 shares 40 per cent. had been paid prior to bankruptcy, leaving a balance of 60 per cent. on each share unpaid, and failing to pay the said balance in accordance with the order, this suit was commenced in said court. Kent filed an answer admitting the corporate existence of said company, and the fact of his subscription for 10 shares of its capital stock, and the subsequent purchase by him of the 10 shares from Joslin & Park, and denied each and every other allegation of the petition; and for a second defense alleged that the subscription was made by him on account of false and fraudulent representations of the Action by Clark W. Upton, assignee in agent of the company; and, thirdly, alleged a set-off. The second and third defenses bankruptcy of the Great Western Insurance Company, against Thomas A. Kent, were originally demurred to by the plainto recover the balance alleged to be due tiff, and the demurrer overruled, and the on a subscription to the stock of said court admitted evidence under said decompany. Judgment for fenses; but in its charge to the jury stated Plaintiff appeals. Reversed. On appeal that said admission was error, and into the United States supreme court, judg-structed the jury to disregard the same. ment of reversal reversed, and case remanded to the supreme court. Judgment BLAIR, J., dissenting. On remand from the supreme court of the United States. affirmed. defendant. W. W. Corlett, for plaintiff in error. C. N. Potter, for defendant in error. The case was tried by a jury, and a verUpon the case coming to this court at the dict rendered against Kent for $1,200. March term, 1879, (2 Wyo. 53,) the judgment of the court below was reversed upon the ground that the action was barred by the statute of limitations, which claim SENER, C. J. This was a civil action was first made in this court, and the case brought in the district court for the first was thereafter heard in the United States judicial district in and for Laramie coun- supreme court upon that question only, ty, by Clark W. Upton, assignee in bank- (vide 105 U. S. 646,) this court being reruptcy of the Great Western Insurance versed upon the question of statute of limiCompany, against Thomas A. Kent, as a tations; and the case was then remanded stockholder in said company, to recover to this court to take such further proceedthe balance alleged to be due on a subscrip-ings as may be in conformity with law 43 44 Kent v. Upton. and not inconsistent with the opinion of the supreme court of the United States. The petition in error puts in issue in this court several questions respecting the admission of testimony and the instructions of the court to the jury. But before we can or ought to consider these questions, we must first consider and dispose of the one last raised by the defendant in error in his brief, and which is thus stated by him: "The question of the time when the motion for a new trial was filed is submitted for consideration. The time was extended, for what reason the record fails to inform us, and some considerable time from verdict elapsed before its filing." In brief, it is submitted to us whether the plaintiff in error has so perfected his case in the court below as to bring into this court any question which this court can or ought to determine. The statutes of Wyoming governing the question as to the time and manner of presenting applications upon motions for new trial are very simple and clear, are found in chapter 13. §§ 308, 309, Comp. Laws Wyo. p. 72, and read as follows: "Sec. 308. The application for a new trial must be made at the term the verdict, report, or decision is rendered, and except for the cause of newly-discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered, and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented. "Sec. 309. The application must be by motion, upon written grounds, filed at the time of making the motion. The causes enumerated in subdivisions two, three, and seven of section three hundred and six, must be sustained by affidavits showing their truth, and may be controverted by affidavits. These statutes are mandatory in their character, as their reading will show. The highest courts of several states have construed them in this light, as will be seen by reference to Harris v. Ray, 15 B. Mon. 628; Odell v. Sargent, 3 Kan. 80; Killip v. Mill Co., 2 Nev. 34; Richmond's Adm'x v. Wardlaw, 36 Mo. 313; Ellsassor v. Hunter, 26 Cal. 279. In this case we cannot do better than to adopt the language of Judge WAGNER in Richmond's Adm'x v. Wardlaw, supra, in delivering the opinion of the court, wherein he says: "The sum of the whole matter seems to be this: A party sleeps on his rights until the time allowed him by law to make a motion for a new trial expires; he can no longer claim to make his mo. tion as a matter of right." Continuing, the learned judge says: "If the court refuses to grant the party a new trial, no error will lie, because no law authorized him to make the motion after the four days expired, and this is a proper punishment for neglecting to assert his rights in due time." The record in this case shows that the verdict of the jury was rendered on the 14th of December, 1876. Vide page 116 of the printed record before us. The mo tion for a new trial was not filed until the 16th of February, 1877,-more than 60 days after the verdict was rendered. And there is nothing in the motion, or accompanying the motion, to show that the party filing said motion had been theretofore "unavoidably prevented." But it will be urged that the court extended the time for filing said motion for a new trial until the end of the then present term of the district court. The extract of the record giving this permission, or rather undertaking to do it absolutely in the face of the mandatory words of the statute, is as follows, (vide page 116 of the printed record,) nothing being omitted of the entry: "November Term, 1876. Saturday, Dec. 16, 1876. Clark W. Upton, Assignee of Great Western Insurance Company, v. Thomas A. Kent. On application of W. W. Corlett, Esq., of counsel for defendant, it is ordered by the court that the time for filing a motion for a new trial herein be extended to the end of the present term of this court." In the first place it would be a sufficient objection to this entry to say that, taking the entry for all that it is worth, or purports to be worth, it was purely ex parte. The journal entry utterly fails to show the presence of both parties at the time, and no party could be bound by any such proceeding if not present, either in person or by counsel. As is justly said by Powell, App. Proc.: "When a motion is to be made in any manner affecting a judgment or the rights of the opposite party, or to amend, or to avoid, or to reform the judgment or pleadings, or otherwise affecting the rights of the party, where they are not already in court to hear the motion and to meet it, it is necessary that the party making the motion should give the opposite party, or his attorney, due notice of the time when, and the grounds upon which, the motion is to be made, or such proceedings themselves would be erroneous; for it is a general rule, in all cases affecting the rights or in |