III. NOTICE OF MOTIONS AND OTHER INTERLOCUTORY PROCEEDINGS. §1182. Motions. 1183. Notice by Entry in Book. 1184. When Required. 1185. Presence of Counsel will not Waive. 1186. Parties Charged with Notice of Motion." 1187. Motion in the Nature of Summary Proceeding. 1188. Motion to Set Aside Sheriff's Sale. 1189. Filed in Term Time. 1190. Examples under Different Statutes. 1192. Sufficiency of Notice. 1193. Substantial Accuracy. 1194. Against Constable. 1195. Designation of Court. 1196. Date of Filing. 1197. Circumstances Affecting Sufficiency. 1198. Notice Generally in Writing. 1199. Service of Notice. 1200. Upon the Party Affected 1201. Time of Notice. 1202. Motion for New Trial. 1203. Waiver by Appearance. 1204. Notice of Reference. 1205. Notice of Reinstatement. 1206. Rule to Show Cause. 1207. Examination of Accounts. § 1182. Motions. The motions that are made in the progress of a trial, or used to institute proceedings in court, are too numerous and diverse in character to render it either practicable or useful, for the purposes of this work, to attempt an enumeration of them, in order to state when and under what circumstances a notice of such motion should be given to the opposite party, or might be dispensed with. Neither is it necessary to set out in detail the provisions of the various statutes upon this subject. It will be sufficient to give such general rules as may be extracted from the judicial construction given to statutes bearing upon the subject, and to endeavor to properly set forth the methods favored by the courts for imparting notice of such motions. § 1183. Notice by Entry in Book. The practice of serving the opposite party with notice of motions is not at all uniform. In some of the states the only notice received of the filing of an interlocutory motion, by the party to be affected thereby, is by its filing in open court, or by an entry in a book, variously designated as "Motion Docket," "Law Docket," or “Law Calendar,” kept for that purpose, in court during term time, and in the office of the clerk of such court during vacation. This book is at all times open to inspection, and when a motion is entered there, the attorney for the opposite party is presumed to be fully notified of the pendency of such motion. Even the keeping of such book is not always prescribed by statute, but is in some instances left to the discretion of the court, to be laid down as one of its rules or entirely omitted, as may be deemed most expedient. We shall not attempt to enter minutely into a consideration of such notices of motions as are given in this manner, but shall confine our attention to such as are given by the mover or his attorney to the party to be affected, or the attorney of such party, by means of regular service of such notice in writing. 1184. When Required. — And first, as to when notice of a motion should be given. In general, when the motion extends to and affects the interest of the party against whom the motion is made beyond his process, such party or his attorney must be served with notice; as, where the motion is by defendant, to have an execution against him, entered satisfied. Though if the motion merely affected the process, the party being supposed to be present in court with his process, it was held such motion might have been made without notice.1 'Haley v. Williams, 8 Sm. & M., 487. 81185. Presence of Counsel will not Waive. However, it is not to be inferred that the mere presence of the party or his attorney in court when the motion is made will always be suf ficient to dispense with a notice of such motion. On the contrary, it has been held that the certificate of a judge, that counsel of the adverse party was in court when a motion was made, but without stating that such counsel had notice or knowledge of the motion, was not sufficient to show notice to him.1 $1186. Parties Charged with Notice of Motion. Elsewhere it has been held that when a party is once in court, he must, at his peril, take notice of all orders and all pleadings filed by order of the court. But the distinction between motions or pleadings filed by order of the court, and those filed by the party at his own instance, is quite obvious. $1187. Motion in the Nature of Summary Proceeding. Where the motion is in the nature of a summary proceeding against some one who has not already been brought in by process, notice of such motion should always be given. As where it is for the removal of a jailor or other ministerial officer, for alleged malfeasance or misfeasance, such motion should not be sustained where the officer has not been duly notified of its pendency against him. Where the motion was for judgment against a sheriff for making a false return, it was held that to allow judgment to go according to such motion, without giving the sheriff such notice as would enable him to appear and make his defense, would be equivalent to the prosecution of a civil suit against a defendant upon whom original process had never been served. He would not have his day in court, and hence such judgment would be absolutely void. §1188. Motion to Set Aside Sheriff's Sale. So, also, should notice be given of a motion to set aside a sheriff's sale," or to 1 Shotwell o. Rowell, 30 Ga., 557. Williams . Miller, 1 Wash. Terr., 105. 3 Gorham v. Luckett, 6 B. Monr., 146. 4 Jenkins v. State, 33 Miss., 382. "Osborn v. Cloud, 21 Iowa, 238. set aside an order of court made at a prior term of court;1 in either of which cases the notice should be given to all parties interested. But a motion made to set aside a verdict, rendered at the same term at which the motion was made, was held not to require any formal notice, because being made at the same term at which the trial was had, it thereby became a part of the trial. Nor is notice necessary of a motion to set aside a default entered by a justice of the peace, even in states where notice of motion is generally required.3 1189. Filed in Term Time. It has also, been held that motions filed in term time do not require the service of notice on the opposite party, when such motion has reference to a proceeding before the court at the term at which the motion was made.1 §1190. Examples under Different Statutes.-In general the codes require notice to be given of an intended motion for a new trial. Also of a motion for alimony incident to a decree of divorce, which is in the nature of a summary proceeding, and the notice answers the same purpose as the original process in the litigation of any claim or demand, and consequently should be served the full time prescribed by statute for the service of such notices; otherwise they should not be heard." But under a statute of the State of Georgia it was held that where the object of the motion was to establish copies of office papers, notice was not indispensable." $1191. Motion to Dismiss Appeal. Where a motion was made to dismiss an appeal, it was held that as the parties were supposed to be in court after continuance, for collateral motions, they were not entitled to any other notice than the entry of Б Killip . Empire Mill Co., 2 Nev., 34; Coveny v. Hale, 49 Cal., 552; Markward v. Doriat, 21 Ohio St., 637. "Wilde v. Wilde, 2 Nev., 306. 'Saunders v. Smith, 3 Ga., 121. such motion on the law docket, according to the practice of the court.1 $1192. Sufficiency of Notice. Next, as to what is sufficient notice of a motion. Where formal notice is required at all, beyond the entry of the motion itself in the docket or calendar, the almost universal requirement is that it shall be reduced to writing, and regularly served upon the party or his attorney. And such notice should contain a statement sufficiently specific and certain, to advise the party so served of the nature of the motion to be made and of the particular matter in controversy to be affected by such motion. And where the motion is to be directed to a matter affecting the interests of the party notified, and he would have the right to explain or deny by affidavit, the matter constituting the grounds alleged for the motion, such ground should be stated with reasonable. certainty in the notice.2 § 1193. Substantial Accuracy. As in other matters of prac tice, so in this, is the notice prescribed, one which depends for its sufficiency, more upon a substantial subservience of the objects and purposes for which it was designed, than upon any technical precision of its statements. So, even where the motion noticed was in the nature of a summary proceeding under the statute, for the purpose of charging the party notified with a debt, it was held sufficiently definite, if it described with reasonable certainty the debt with reference to which the motion was to be made.3 $1194. Against Constable. So, where the motion was against a constable, charging him with neglect of duty, and was in the nature of a pleading, substantial certainty in the notice was sufficient. The judgment with reference to which the neglect was alleged, being described as against "P and others" while it appeared in evidence that it was against "P & L," the error was held immaterial. But where the motion noticed 'Papin v. Buckingham, 33 Mo., 454. 'Brower v. Brooks, 1 Barb., 423; Freeborn v. Glazier, 10 Cal., 337 2 Colgin v. State Bank, 11 Ala., 222. Hix v. Cornelison, 7 Coldw. Tenn., 299. |