Anderson v. Halthusen Mercantile Co.

• Decision Date: 10 January 1906
• Docket Number: 1634
• Citation: 30 Utah 31,83 P. 560
• Court: Utah Supreme Court
• Parties: ANDERSON v. HALTHUSEN MERCANTILE CO

83 P. 560

30 Utah 31

ANDERSON v. HALTHUSEN MERCANTILE CO

No. 1634

Supreme Court of Utah

January 10, 1906

APPEAL from District Court, Third District; C. W. Morse, Judge.

Action by Andrew P. Anderson against H. Halthusen Mercantile Company. From an order granting a motion for nonsuit and denying a motion for a new trial, plaintiff appeals.

At the time of hearing the arguments in the case, a verbal order was made and entered on the minutes of the court dismissing the appeal; but it was deemed proper, in order to settle the practice respecting appeals, to make a formal statement of the grounds therefor.

APPEAL DISMISSED, JUDGMENT AFFIRMED.

Zane &amp Stringfellow for appellant.

APPELLANT'S POINTS.

This court cannot extend the time limited by statute for taking appeals. (Brough v. Mighell, 6 Utah 317.)

An appeal taken when the statutory time has expired, is not valid and will be dismissed. (Mount v. Simons, 3 Utah 230; Hanks v. Matthews, 8 Utah 181; Ryan &amp Ream Cattle Co. v. Murdock, 8 Utah 497; White v Pease, 15 Utah 170; Watson v. Mayberry, 15 Utah 265.)

Powers & Marioneaux for respondents.

HOWELL District Judge. BARTCH, C. J., and McCARTY, J., concur.

OPINION

HOWELL, District Judge.

This case is before the court on an appeal from an order of the trial court granting a motion for a nonsuit herein, and dismissing the case, and from an order of said court denying a motion for a new trial. The motion for a nonsuit was granted, and the case dismissed on June 10, 1901. The motion for a new trial was denied May 18, 1903. The notice of appeal from the order granting the motion for a nonsuit and denying the motion for a new trial was served and filed January 6, 1905. It is not contended by counsel for the appellant that the appeal herein was taken within the statutory time, but they insist that the respondent has waived its right to take advantage of the expiration of the time by reason of the following stipulation, which was entered into between counsel for the respective parties and dated December 31, 1904, the same being appended to the transcript herein: "This proposed bill of exceptions has been in our possession since it was served upon us, to wit, July 14, 1903, to enable us to prepare amendments thereto, and then agreed with plaintiff's attorneys that they should not lose their right to have the bill settled while it was in our possession, and they may now have the bill settled, and no advantage taken by reason of it not having been settled whatever, and plaintiff may prosecute his appeal thereafter if he desires."

Opposing counsel are not agreed as to the proper interpretation to be given this instrument, counsel for appellant claiming that it should be construed as a waiver of the right to insist on the appeal being taken within six months, as required by the statute, and counsel for respondent insisting that it simply goes to the extent of preventing them taking any advantage of the fact that the bill of exceptions was not settled within the time allowed by law. Although the contention of counsel for the respondent, as to the meaning of the stipulation, seems the most reasonable, we do not consider it necessary to determine its precise effect, for the reason that, conceding it goes to the entire extent claimed by counsel for the appellant, it can, in our opinion, avail him nothing.

Section 3301, Revised Statutes 1898, provides, as follows:

"An appeal may be taken within six months from the entry of judgment or order appealed from."

Section 3329, Revised Statutes 1898, provides as follows:

"When an act to be done, as provided in this Code, relates to the pleadings in the action, or the undertaking to be filed, or the justification of sureties, or the preparation of bills of exceptions or of amendments thereto, or to the service of notices other than of appeal, the time allowed by this Code may be extended, upon good cause shown, by the court in which the action is pending, or a judge thereof."

It was expressly held by this court in Mount v. Simons, 3 Utah 230, 5 P. 563, that an appeal taken after the statutory time had expired was invalid, and should be dismissed. To the same effect is the case of Henderson v. Barnes, 27 Utah 348, 75 P. 759. This court has also repeatedly decided that an appeal taken and perfected within six months from the date of overruling a motion for a new trial is in time, and thus by implication held that if more than six months had elapsed it would not be in time. (Snow v Rich, 22 Utah 123, 61 P. 336; Stoll v. Mining Co., 19 Utah 271, 57 P. 295. See, also, Orchard Co. v. Hanley, 15 Utah 506, 50 P. 611; Watson v. Mayberry, 15 Utah 265, 49 P. 479; Blyth & Fargo v. Swenson, 15 Utah 345, 49 P. 1027; Jones v. Insurance Co., 14 Utah 215, 47 P. 74; Voorhees v. Manti City, 13 Utah 435, 45 P. 564; Hanks v. Matthews, 8 Utah 181, 30 P. 504; Cattle Co. v. Murdock, 8 Utah 497, 33 P. 136; Brough v. Mighell, 6 Utah 317, 23 P. 673.) It was also decided in Brough v. Mighell, supra, that the court could not extend the time limited by statute for taking appeals, and this decision was approved in Cattle Co. v. Murdock, 8 Utah 497, 33 P. 136. See, also, Butter v. Lamson (Utah), 82 P. 473. It is difficult...