Opinion
No. 7,824.
Submitted May 11, 1938.
Decided May 24, 1938.
Mandamus — New Trial — Cause Tried Without Jury — Divorce — Death of Court Reporter — Inability of Party to Secure Transcript — Party Entitled to New Trial as Matter of Right — Statutes — Implied Repeal. Statutes — Repeal by Implication — Rule. 1. Though repeals of statutes by implication are not favored by the courts, where two Acts dealing with the same subject are so repugnant as to be irreconcilable, or if the later Act is inconsistent in its provisions with the first and plainly shows upon its face that it was the intention of the legislature in enacting it that it should be the only law on the subject, the prior statute must be considered as repealed by it. Same — New Trial — Cause Tried by Court Without Jury — Amendment of Statute — Death of Court Reporter — Loss of Right to Bill of Exceptions — Refusal of Motion Error. 2. Under the above rule, held, that subdivision 8 of section 9397, Revised Codes, added as an amendment to the section by Chapter 68, Laws of 1935, and providing that a new trial may be granted where the right to have a bill of exceptions has been lost either through the death or incapacity of the court reporter or in any manner not the fault of the losing party, applies in all cases where the facts come within such subdivision, and that in so far as it conflicts therewith, section 9396, declaring that no new trial shall be granted in equity cases or cases tried without a jury except where asked for on certain other grounds, it must be deemed repealed by implication. Same — Divorce — Death of Court Reporter — Inability to Procure Transcript of Evidence — New Trial — Court must Grant Motion. 3. Where, after trial of a divorce case by the court without a jury, the court reporter died before transcribing his notes and thus the appealing wife lost her right to have a bill of exceptions prepared, she was entitled to a new trial under subdivision 8 of section 9397, supra, and the trial court in denying her motion committed error. New Trial — When District Court Without Discretion but must Grant Motion. 4. Where a party moving for a new trial is entitled thereto as a matter of right, the district court has no discretion but must grant it. Same — Order Denying Motion not Appealable — Manner of Review Permissible — Mandamus. 5. An order denying a motion for new trial is not appealable but may be reviewed on appeal from the judgment, or, where a new trial is a matter of absolute right, review may be had by writ of mandate.
Appeal from the District Court of the County of Silver Bow, R.E. McHugh, Judge.
Mr. Philip O'Donnell, for Relatrix, submitted a brief, and argued the cause orally.
Mr. Harry Meyer, for Respondents, submitted a brief, and argued the cause orally.
This is an original proceeding in mandate. Relatrix was the defendant in an action for divorce, which was tried on July 6 and 7, 1937, by one of the judges of the district court of Silver Bow county sitting without a jury. E.J. Noonan, the duly appointed and qualified court reporter, took the testimony on the trial of the case. He died on September 8, 1937, without having transcribed his shorthand notes of the testimony offered and received on the trial. On November 13, 1937, the trial judge rendered his decree in the divorce action, awarding the plaintiff a divorce. Defendant thereafter made a timely motion for a new trial upon the ground, among others, that her right to have a bill of exceptions had been lost through the death of the official reporter. This motion was denied. By this application a writ of mandate is sought to compel the respondent court to grant the motion of relatrix for a new trial. The lower court has appeared in this proceeding by motion to quash the alternative writ heretofore issued out of this court.
Section 9397, Revised Codes, provides: "The former verdict or [1-3] other decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party. * * * 8. That the right to have a bill of exceptions has been lost, either through the death or incapacity of the court reporter or in any manner that was not the fault of the losing party." Subdivision 8 was added to this section by amendment in 1935, Chapter 68.
Section 9396, which has been a part of our statutory laws since 1921, declares: "No new trial shall be granted in equity cases, or in cases tried by the court without a jury, except on the grounds mentioned in the first, third, and fourth subdivisions of section 9397 of this code."
If section 9396 is controlling, relatrix was without right to a new trial on this ground, since the case was tried before the court without a jury. The amendatory Act to section 9397 does not expressly amend or repeal section 9396. When section 9397 was amended, the only change in the section was the adding of subdivision 8.
No reason is suggested why the legislature did provide that the loss of the right to settle a bill of exceptions should entitle a movant to a new trial in an action at law tried by a jury, but that no such right be accorded to a movant where an action is in equity or one at law tried before the judge without a jury.
As we have observed, the amendment to section 9397 is the later enactment. Both sections relate to the subject of new trials. In the case of State ex rel. Wynne v. Quinn, 40 Mont. 472, 107 P. 506, this court said: "Repeals by implication are not favored. Where two Acts of the Legislature deal with the same subject, effect must be given to both, if possible. But if their provisions are so repugnant as to be irreconcilable, or if the later Act is inconsistent in its provisions with the first, and plainly shows upon its face that it was the intention of the Legislature in enacting it that it should be the only law on the subject, the prior statute is to be treated as repealed by it. ( Territory ex rel. Largey v. Gilbert, 1 Mont. 371; Lane v. Commissioners of Missoula County, 6 Mont. 473, 13 P. 136; Dunn v. City of Great Falls, 13 Mont. 58, 31 P. 1017; 1 Sutherland on Statutory Construction, sec. 138.)"
We think that it was the intention of the legislature that subdivision 8, supra — a general law — should apply to all cases where the facts come within the purview of the subdivision, and, therefore, in so far as section 9396 conflicts with subdivision 8, the former must be deemed repealed.
By the affidavits filed in support of the motion, it appears that owing to the death of the court reporter, who did not transcribe his notes, the right to a bill of exceptions has been lost; therefore, relatrix had a clear legal right to have her motion for a new trial granted.
Where the moving party is entitled to a new trial as a matter [4, 5] of right, the trial court has no discretion and must grant the motion as a matter of right. ( Brunnabend v. Tibbles, 76 Mont. 288, 246 P. 536.) An order denying a motion for a new trial is not an appealable order, but review of the order may be secured on appeal from the judgment. (Sec. 9402, Rev. Codes.) Review of the order may be had by mandate where a new trial is a matter of absolute right. (38 C.J. 634; Jaeger v. Mitchell, 277 Mich. 464, 269 N.W. 235.)
Let a writ of mandate issue as prayed.
ASSOCIATE JUSTICES STEWART, MORRIS and ANGSTMAN concur.
MR. CHIEF JUSTICE SANDS, absent on account of illness, takes no part in the foregoing decision.
Rehearing denied June 6, 1938.