Page:United States Statutes at Large Volume 47 Part 1.djvu/988

 964 72d CONGRESS. SESS. II. CH. 127. FEBRUAR Y 27, 1933 . Application for. SEC. 325. MANNER OF MAKING APPLICATION FOR NEW TRIAL.-When the application is made for a cause mentioned in the first, second, third, and fourth subdivisions of section 324, it must be made upon affida vits ; otherwise it m ust be made on t he minutes of the court. Notice of motion, SEC. 326. NOTICE OF MOTION, UPON WHOM TO BE SERVED, AND WHA T upon whom served; wntents. TO CONTAIN.--The party intending to move for a new trial must, either before the entry of j udgment or within ten days after receiv- ing notice of the entry of~ the judgment, or within ten days after verdict, if th e trial was by j ury, file with t he clerk and ser ve upon the adverse party a notice of his intention to move for a new trial desig natin g the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both. The time above specified shall not be extended by order or stipulation. If the motion is' to be made upon affidavits, the moving party must, within ten days after serving the notice, or such further time as the court in which the action is pending, or the judge thereof, may allow (but not to exceed twenty days' additional time) file such affidavits with the clerk and serve a copy thereof upon the adverse party, who shall have ten days thereafter, or such fur- ther time as the court may allow (not exceeding twenty days' addi- tional time) to file counter-aff idavits and serv e a copy thereof upon the moving party. Time of hearing mo- SEC. 327 . TIME OF HEAR ING MOTION ; REF EREN CE TO PL EADING S tion ; reference to plead- > > logs, orders ,and evi- ORDERS AND EVIDENCE AT HEARING.-The motion for a new trial must dance at hearing. b e heard at the earliest practicable time after the filing of affidavits and counter-affidavits, in case the motion is made on affidavits, in other cases after the filing of the notice. On such hearing reference may be had in all cases to the pleadings and orders of the court on file, and when the motion is made on the minutes reference may also be had to any depositions and documentary evidence offered at the trial and to the report of the proceedings on the trial taken by the reporter, or to any certified transcript, of such report, or if there be no such report o r certified tran script, to such proceedings occur ring at the trial as are within the recollection of the judge ; when the pro- ceedings at the trial have been reported, but the reporter's notes have not been transcribed, the reporter must, upon request of the court, or either party, attend the hearing of the motion, and shall read his notes, or such parts thereof as the court, or either party, may require. New trial has prece- NEW TRIAL HEARING HAS PRECEDENCE .-The hearing and disposition dence. of the motion for a new trial shall have precedence over all other matters except c riminal cases, p robate matters, and cases actuall y on trial, and it sh all be the duty of the court to determine the sam e at the earliest possible moment. To be passed on MOTION TO BE PASSED ON WITHIN Two MO NTHS .-The power of the withi n two months. court to pass on motion for a new trial shall expire within two months after the verdict of the jury or service on the moving party of notice of the entry of the judgment. If such motion is not deter- mined within said two months, the effect shall be a denial of the motion without further order of the court. Vacation of judg- SEC. 328. VACATION OF JUDGMENT.-A judgment or decree of the ment. district court, when based upon findings of fact made by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the court, and another and different judgme nt entered, for either of the fo llowing causes, m ate- rially affecting the substantial rights of such party and entitling him to a different judgment : 1. Incorrect or erroneous conclusions of law not consistent with or not supported by the findings of fact ; and in such case when