McGillycuddy v. Morris

• Citation: 7 S.D. 592,65 N.W. 14
• Parties: McGILLYCUDDY, Plaintiff and respondent, v. MORRIS et al. Defendant and appellant.
• Decision Date: 28 October 1895
• Court: South Dakota Supreme Court

7 S.D. 592

65 N.W. 14

McGILLYCUDDY, Plaintiff and respondent, v. MORRIS et al.

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, SD

Hon. William Gardner, Judge.

Affirmed

James W. Fowler

Attorneys for appellants.

Wood & Buell

Attorneys for respondent.

Opinion filed Oct. 28, 1895

CORSON, P. J.

This is an action upon a promissory note brought by the plaintiff as indorsee against the defendants as indorsers of the same. Verdict and judgment for plaintiff, and defendants appeal. This case was submitted on briefs, without oral argument, and at the time the case was so submitted the defendants also submitted a motion made by them to purge the record by striking therefrom the bill of exceptions, upon the ground that as the same was not served and settled within the statutory time, and no order had been made by the court or judge extending the time, and no cause having been shown, by affidavit or otherwise, excusing the delay, neither the judge nor the court had power or authority to settle the same on November 2nd when the same was in fact settled. This motion being a preliminary one, it must necessarily be disposed of, in order that this court may determine what record is properly before the court on this appeal. The verdict was rendered on April 1, and the judgment on April 4, 1893. On April 1st an oral order was made by the court staying proceedings for 60 days, but whether or not the time for serving notice of intention of motion for a new trial and for serving and settling a bill of exceptions was extended for the 60 days does not clearly appear, as the order is not in the record, and counsel do not agree as to what the order was in that respect; but in the view we take of the motion this is not material, and we shall assume for the purpose of this decision that the order did extend the time for serving notice of intention and to serve bill of exceptions for 60 days. On June 16th an order was made extending the time for serving notice of intention to move for a new trial 15 days, and on the 19th this order was extended until the further order of the court, and all proceedings were stayed for the same time. On September 18th a new trial was denied. On October 23d the bill of exceptions was served, and settled by the Judge on November 3d. At the date of the settlement the following objection to such settlement was made by counsel for the plaintiff, as appeared in the certificate to the bill:

“Messrs. Wood & Buell appearing herein for plaintiff, make objection to the settlement and allowance of the bill of exceptions herein for the reason that the same was not served or settled within the time allowed by law, or within a reasonable time after the trial of this action.”

To the settlement of the bill the counsel for the plaintiff entered the following exception:

“To the maklng of which foregoing order and certificate the plaintiff objects and excepts for the reason that said bill of exception was not served or settled within the time allowed by law or the order of the court, or within a reasonable time after the trial of said action, which exception and objection is allowed and made a part of the record herein.”

In the absence of an affirmative showing to the contrary, this court would presume the court below proceeded regularly in settling the bill of exceptions, and had before it the requisite proof to authorize it to fix a time for settling the same as provided by section 5093, Comp. Laws, Johnson v. Railroad Co. (ND) 48 N.W. 227.

But in the case at bar the plaintiff has, by an additional abstract and by affidavit, shown affirmatively that the court did not extend the time after June 16th, nor make an order fixing “another time,” as provided in that secition, upon any showing whatever. In his additional abstract the plaintiff states:

“The respondent denies that the orders made on the 16th day of June and on the 19th day of June, 1893, were of the character mentioned on the bottom of page 13 and top of page 14 of appellant’s abstract, and state the fact to be that on the said 16th day of June, 1893, the court made an order granting the appellants fifteen days’ time ‘to prepare and serve their notice of intention to move for a new trial herein,’ and also granting a stay of execution for a like period. On the said 19th day of June, 1893, the court made an order that the time to prepare and serve notice of intention to move for a new trial, and the stay of execution, be extended until the further order of the court. The above and foregoing orders, to wit, said oral order of April 1, 1893, and the said written orders of June 16 and June 19, 1893, are the same and identical orders referred to in appellant’s abstract, as aforesaid, and were and are the only orders ever made by the trial court or the judge thereof, or any court or judge herein, granting an extension of time for any purpose, or stay of execution, and said final oral order provided for a stay of execution for sixty days, and said last two orders provide for an extension of time for the purpose of preparing and serving notice of intention to move for a new trial and stay of execution, and said orders granted no extension of time for any purpose whatever. That the time has never been enlarged or extended for preparing or serving a bill of exceptions herein, and the said bill of exceptions was never served or settled within the time allowed by law, or any orders of said circuit court or the judge thereof wherein said cause was tried, or within a reasonable time after the trial of said action, to wit, said bill of exceptions was not served on respondent until October 23, 1893, … The respondent denies that the alleged bill of exceptions herein was duly settled as stated at the bottom of page 29 of appellant’s abstract and states the fact to be that the said alleged bill of exceptions was settled by the circuit court or by the judge thereof contrary to law, and without any authority or right...