Yerrick v. Dist. Ct. in and for Salt Lake Co., 48 Utah 619.

cases, in my judgment, are directly in point upon the foregoing proposition, and are decisive of the question that the district court is without jurisdiction to entertain the motion for a new trial in this case. California Imp. Co. v. Baroteau, 116 Cal. 136, 47 Pac. 1018; Radabaugh v. Silvers, 135 Ind. 605, 35 N. E. 694; Cutsinger v. Nebeker, 58 Ind. 401; Shaffer v. Milwaukee, etc., Ins. Co., 17 Ind. App. 204, 46 N. E. 557; Jacquay v. Hartzell, 1 Ind. App. 500, 27 N. E. 1105. In the Kansas case it was held, however, that a motion for a new trial is filed timely if filed within the time required by the statute after judgment has been directed by the appellate court. That case, in my judgment, is, however, not in point here. In that case the jury returned both a general and a special verdict in favor of the plaintiff in the action. The trial court, however, refused to receive or recognize either the general or special verdict, but directed the jury to return a general verdict in favor of the defendant in the action. The jury returned such a verdict, and judgment was duly entered thereon. The plaintiff objected and excepted to the ruling of the trial court, and prosecuted an appeal to the Supreme Court of Kansas. That court held that the trial court erred in refusing to receive and recognize the verdicts of the jury, and in directing it to return a verdict for the defendant, and reversed the court's ruling and judgment, and directed it to enter judgment upon the verdicts returned by the jury in favor of the plaintiff, which in accordance with the remittitur from the Supreme Court, was done. Within the time allowed by statute after the trial court had thus received and recognized the verdicts of the jury in favor of the plaintiff, the defendant in that case filed a motion for a new trial. The plaintiff objected to the motion upon various grounds, one of which was that it was filed too late, and that the trial court was without jurisdiction to entertain the motion. The trial court, however, overruled the plaintiff's objections, considered and passed on the motion, and overruled the same, and the Supreme Court sustained the ruling of the trial court in entertaining the motion. The ruling of the Supreme Court is, however, based upon the sole ground that the trial court had never received nor recognized the verdicts of the jury

Prohibition against Dist. Ct. Salt Lake Co.

until directed to do so by the Supreme Court, but had directed the jury to return a verdict in favor of the defendant. The latter verdict was therefore held to be the only verdict in the case, and in view that that verdict was in favor of the defendant there was no verdict which it could move against until the verdicts returned by the jury were received and recognized by the trial court, which occurred only after the remittitur of the Supreme Court had gone down. The decision in that case, therefore, had the same effect as though the trial court had by mandamus been coerced to receive and recognize the verdicts returned by the jury. Such is not the case here. Here the verdict of the jury was received, and it was that verdict, and nothing else, that the company moved to have set aside. For that purpose it made the motion and the motion was granted. It developed, however, on appeal that the district court had erred in entertaining and granting the motion, and the ruling and judgment of that court were reversed. Now it is contended that since it has been decided that the company interposed the wrong motion and that the district court erred in granting it, and since that court was directed to set aside its ruling and judgment the company should be given a chance to interpose a proper motion for a new trial, and this upon the alleged ground that in view that the district court had ruled in favor of the company a motion for a new trial would have been a useless proceeding. Let me again call attention to the fact that it was the verdict of the jury that the company assailed and was required to assail. As pointed out by the Supreme Court of California, and of Indiana, in the cases herein referred to, the proper motion to set aside and vacate the verdict of the jury was a motion for a new trial, and if the company sought to attain that end by another motion which was erroneously granted by the trial court, the right to move for a new trial was thereby waived or lost, and that such a motion comes too late if it is delayed until after the ruling of the trial court is reversed, and that court is directed to enter judgment upon the verdict. It is held that under such circumstances the trial court is without power to entertain a motion for a new trial. In my judgment the decisions from California and Indiana are entirely sound.

Yerrick v. Dist. Ct. in and for Salt Lake Co., 48 Utah 619.

It goes without saying that the party who is dissatisfied with the result reached by either court or jury must not only pursue the remedies pointed out by the statute, but must do so within the specified time. Courts, of course, look to the substance rather than the form of things, and if the company had filed its motion for a new trial it could rely upon it regardless of the fact that it had also filed some other motion which was not proper. It could have filed the proper motion within the time required by statute, but cannot now retrieve its error by asking that it be permitted to do what the statute does not permit and what other litigants may not do. There must be an end to litigation, and this case forcibly illustrates that the rule is a salutary one in view that the case has been pending, as appears from our former decisions, for more than seven years. The case has been here twice on appeal, and is now here for a third time in the present form. If a new trial should now be granted in this case it may be in any case where a party has mistaken his remedy and has interposed the wrong motion, which was granted. In other words, if a verdict may be set aside upon an improper motion in this case without exhausting the remedy of the moving party, it may be in any case, and hence the proper motion for a new trial need not be interposed until this court has corrected the errors of the party making the wrong motion and of the court granting it. Such, in my judgment, is not the law anywhere, and should not be declared to be in this jurisdiction. Moreover, if a motion for a new trial may now be interposed, then it may be based upon all the grounds provided by our statute, some of which may go to questions of fact respecting irregularities which the statute clearly contemplates shall be made to appear within a specified time after trial, and which, by reason of lapse of time, the adverse party may now be unable to meet. But it is not necessary to multiply reasons. In my judgment it is quite sufficient that the statute does not contemplate nor authorize a motion for a new trial under the circumstances of this case.

I am of the opinion that the trial court is without jurisdiction to entertain a motion for a new trial, and hence a peremptory writ of prohobition as prayed for should issue.

Appeal from Third District.

STATE v. THERKELSON.

No. 2884. Decided August 26, 1916. Rehearing denied November 23, 1916 (161 Pac. 59).

INDICTMENT AND INFORMATION-INDECENT ASSAULT-INFORMATIONSUFFICIENCY. Under Laws 1909, c. 26, providing that every

person who shall assault a child, whether male or female, under the age of fourteen years, and shall take indecent liberties with such child, without committing or intending to commit rape, or to assault with intent to commit rape, shall be deemed guilty of an indecent assault, etc., an information alleging in the words of the statute that accused did willfully, etc., assault a female child, and did willfully, etc., take indecent liberties with said child, without committing, intending, or attempting to commit the crime of rape, was sufficient to charge the crime of indecent assault; the words "or the crime of assault with intent to commit rape" being mere surplusage.

Appeal from District Court, Third District; Hon. M. L. Ritchie, Judge.

Lawrence Therkelson was convicted of having committed an indecent assault upon a female child of the age of 11 years, and he appeals.

AFFIRMED.

Carlson & Carlson for appellant.

A. R. Barnues, Atty. Gen., and E. V. Higgins and G. A. Iverson, Asst. Attys. Gen., for the State.

MCCARTY, J.

The defendant was convicted of having committed an indecent assault upon a female child of the age of 11 years. From a judgment imposing a term of imprisonment in the state prison he appeals.

The defendant filed a timely motion to arrest judgment, set aside the verdict, and to dismiss the action "upon the

State v. Therkelson, 48 Utah 629.

ground that the said information does not state facts sufficient to constitute the crime of indecent assault as defined by statute, for the reason that said information does not contain the clause 'or the crime of assault with the intent to commit rape.' The statute (Laws Utah 1909, p. 25) which defendant was charged with having violated provides:

"Every person, who shall assault a child, whether male or female, under the age of fourteen years, and shall take indecent liberties with or on the person of such child, without committing, intending or attempting to commit the crime of rape, or the crime of assault with intent to commit rape, upon such child, with or without the child's consent, shall be deemed guilty of an indecent assault, and on conviction thereof shall be guilty of a felony." (Italics ours.)

The information on which the defendant was tried and convicted charged that:

"The said Lawrence Therkelson, at the county of Salt Lake, state of Utah, on the 25th day of February, A. D. 1915, did willfully, unlawfully, and feloniously make an assault upon a female child under the age of 14 years, to wit, of the age of 11 years, and did then and there willfully, unlawfully and feloniously take indecent liberties with the person of the said without committing, intending, or attempting to commit, the crime of rape on the said

The foregoing information, with the exception of the date therein mentioned and the parties named therein, is an exact copy of the information in the case of the State v. MacMillan, 46 Utah 19, 145 Pac. 833, recently decided by this court. In that case a demurrer was interposed to the information on the ground that the specific act, or acts, constituting the offense were not set forth. In other words, the information failed to state under what circumstances and in what manner the defendant took indecent liberties with the child therein mentioned. The demurrer was overruled. On appeal this court, in effect, held, and properly so,that in this class of cases it is sufficient to allege and describe the assault in the language of the statute. The question raised in the case at bar was not presented or considered in that case. The ques