
    GOACHIM SMIDT et al., Plaintiffs, v. THIRD JUDICIAL DISTRICT COURT, A. N. CHERRY, Judge, and RIO GRANDE WESTERN RAILWAY COMPANY, Defendants.
    Motion fob New Trial — Time fob Hearing — Under Sec. 3297, B. S. 1898 — Postponement of Hearing — Stipulation of Counsel — Es-toppel.
    1. Motion fob new trial: time fob .heading: under section 3297, R. S. 1898. Under the provisions of section 3297, B. S. 1898, if a motion for new trial is to be heard upon the minutes of the court it shall be heard at the earliest practicable moment ofter notice of the motion; but if it is to be heard upon affidavits, then within sixty days after the affidavits are filed, “unless no session of the court is held in the county within that time.”
    2. Postponement of hearing: stipulation of counsel: estoppel. Plaintiffs’ counsel having sought delay in the hearing of the motion for a new trial, and the same having been so continued from time to time, and finally heard at the time agreed upon, and in accordance with the absolute and unconditional stipulation of counsel that it should be so hbard, plaintiffs are estopped to complain that it was not heard at an earlier date.
    Decided March 12, 1901.
    Original application for a writ of certiorari.
    Writ dehted.
    
      
      J. J. Whitaker, Esq., and Messrs. King, Burton & King for plaintiffs.
    
      Messrs. Bennett, Howat, Sutherland & Van Cott for defendants.
   HAST, D. J.

Application is made to this court to review, upon certiorari, an order of the Third District Court granting a new trial to the defendant, the Eio Grande Western Kailway Company. The facts are that judgment was obtained by the plaintiffs against said railway company on January 16, 1900; that notice of intention to move for a new trial upon the minutes of the court was duly served and filed by defendant and a transcript of the evidence promptly ordered of the court reporter, but not delivered by him until April 13, 1900; that about, and some time before, April 13, 1900, plaintiffs’ counsel requested of the defendants a delay in hearing the motion for new trial, which was granted; that on May 24, 1900, the plaintiffs moved to dismiss defendants’ motion for new trial on the ground that the same had not been brought on for hearing within sixty days from filing and serving notice thereof; that' plaintiffs’ said motion to dismiss was •afterwards heard and denied by the court; that owing to requests by plaintiffs for further delay no action was taken until November 17, 1900, when the court heard the motion in pursuance of a written stipulation of counsel entered into November 12, 1900, by which it was agreed, without qualification or condition, that the motion for new trial should be heard and disposed of on the said seventeenth of November. It is but fair to say that the attorneys, King, Burton and King, with whom the various stipulations were made, did not appear in the court below, on motion to dismiss defendants’ motion for new trial, nor do they appear in this court. An associate counsel of plaintiffs seems to be tbe only one complaining of tbe delay and bis contention is tbat wben bis associate counsel asked for delay in tbe bearing tbat tbe statutory time witbin wbicb tbe motion for new trial could be beard bad already expired, and tbe court bad lost jurisdiction. Sec. 3297, Hev. Stat., Utab, provides tbat:

“Tbe application for a new trial shall be beard at tbe earliest practicable period after notice of tbe motion, if tbe motion is to be beard upon tbe minutes of tbe court, and in other cases, after the affidavits are filed, and witbin sixty days thereafter, unless no session of .the court is held in tbe county witbin that time. It may be brought to a bearing upon motion of either party.”.

Tbe plain meaning of this section seems to be tbat if tbe motion is to be beard upon tbe minutes of tbe court, it shall be beard at the earliest practicable period after notice of tbe motion; but if it is to be .beard upon affidavits, then “witbin sixty days thereafter unless no session of tbe court is held in tbe county witbin tbat time.” To hold tbat tbe sixty days clause qualifies tbe first part of tbe section would be disregarding tbe classification therein based upon whether tbe motion is to be heard upon tbe minutes of tbe court or upon affidavits. To adopt plaintiffs’ construction would be doing violence to tbe plain purport of the language of tbe statute. Under plaintiffs’ contention, tbe word “thereafter” would apply to two different antecedents — two different dates — tbe time wben tbe motion was filed, if made upon tbe minutes of tbe court, and tbe time when affidavits were filed, if tbe motion be made upon affidavits.

But in our view of tbe ease, it is not necessary to decide this case upon tbe construction of tbe foregoing statute. It is sufficient to say that- plaintiffs’ counsel, having sought delay in tbe bearing of tbe motion for new' trial, and tbe same having been' so continued from time to time, and finally heard at the time agreed upon, and in accordance with the absolute and unconditional stipulation of counsel that it should be so heard, plaintiffs are now estopped to complain that it was not heard at an earlier date.

If the motion was not heard at the earliest practicable period, it was because defendants’ counsel generously delayed the hearing at the request of plaintiffs’ counsel, and the latter should not be permitted to take advantage of a. delay for their accommodation. Plaintiffs can not be heard to complain that the hearing was had in accordance with their own asking and stipulation.

Having determined that the district court had jurisdiction to grant the motion for new trial, it is ordered that judgment upon this proceeding be entered in favor of the defendants’ and against the plaintiffs and the case remanded to the district court for further action therein in accordance with law, and that defendants recover their costs of court herein.

Baslcin> and Ba/rtch, "JJ.; concur.  