Blatt v. Blatt

• Decision Date: 02 March 1925
• Docket Number: 11129.
• Citation: 234 P. 162,77 Colo. 51
• Parties: BLATT et al. v. BLATT.
• Court: Colorado Supreme Court

234 P. 162

77 Colo. 51

BLATT et al. v. BLATT.

No. 11129.

Supreme Court of Colorado

March 2, 1925

Department 2.

Error to District Court, City and County of Denver; Francis E Bouck, Judge.

Action by Etta M. Blatt and others against Lydia M. Blatt. Judgment for defendant, and plaintiffs bring error. On motion to strike bill of exceptions.

Motion denied.

T. J O'Donnell and W. L. January, both of Denver (Robert Emmet Lee, of Denver, of counsel), for plaintiffs in error.

McDonough & McDonough, of Denver, for defendant in error.

DENISON J.

The defendant in error moves to strike the bill of exceptions on three grounds:

(1) That the court allowed 30 days for the bill, and that it was tendered and settled by the court not in 30 but in 50 days.

(2) That the signature of the court to the bill was made 'subject to the approval of McDonough & McDonough attorneys,' and that McDonough and McDonough have never approved it.

(3) That the bill was never 'lodged' with the clerk of the district court in conformity with rule 26 of that court.

Upon the first point, Code 1921, § 420, expressly gives 60 days for a bill of exceptions, and allows the court to extend that time, but not to shorten it. The bill was therefore seasonably tendered.

Upon the second proposition, the case having been tried before Hon. Francis E. Bouck of Leadville, the bill was tendered to him there. Attached to his certificate is the usual statement of tender: 'Tendered this 18th day of February, A. D 1924. Francis E. Bouck, Judge.' Also on the same day he signed the certificate prefixing to his signature the condition above quoted. We think the meaning of this condition is merely that McDonough & McDonough, attorneys for the defendant in error, should have an opportunity, notwithstanding his signature to object to any defects they might find in the bill. It is not reasonable to suppose that the judge intended to attach to his approval of the bill a naked condition that certain attorneys should approve it also. Upon this construction, if McDonough & McDonough have not objected to the bill and requested his honor, Judge Bouck, to correct it, they are in no position now to claim anything by virtue of this condition. It does not appear that they have objected.

As to the third proposition, the lodgment with the clerk is required for the purpose of giving the opponents of the exceptor an opportunity to examine and object to the ...