Brough v. Mighell

• Decision Date: 14 January 1890
• Citation: 23 P. 673,6 Utah 317
• Court: Utah Supreme Court
• Parties: THEODORE BROUGH, APPELLANT, v. D. MIGHELL, AND ANOTHER, RESPONDENTS

23 P. 673

6 Utah 317

THEODORE BROUGH, APPELLANT, v. D. MIGHELL, AND ANOTHER, RESPONDENTS

Supreme Court of Utah

January 14, 1890

APPEAL from an order of the district court of the third district granting a new trial. The opinion states the facts.

Appeal dismissed.

Mr Maurice M. Kaighn for the appellant.

Messrs Hoge and Burmester for the respondents.

ANDERSON J. BLACKBURN, J., and HENDERSON, J., concurred.

OPINION

ANDERSON, J.:

This is an appeal from an order of the third district court granting a new trial. The order was made and entered on the eighth day of July, 1889. On the sixteenth day of July, 1889, the plaintiff was granted, by consent of parties, "thirty days' additional time within which to file and serve a bill of exceptions and statement on appeal, and notice of appeal; and proceedings in the case are in the meantime stayed." On the fifteenth day of August following, on motion of plaintiff and by consent of parties, the court granted plaintiff fifteen days' additional time; and on the 28th day of August, on motion of plaintiff, he was granted another fifteen days' additional time. On the fourteenth day of September, 1889, the record recites that, "on motion of M. M. Kaighn, attorney for plaintiff, and good cause being shown, it is ordered that said plaintiff be, and he is hereby, allowed an extension, and thirty days' additional time within which to serve notice of an appeal and statement on appeal and bill of exceptions herein. On the fourth day of October, 1889, the plaintiff perfected his appeal by filing in the clerk's office a notice of appeal, an undertaking, statement, etc. The defendant now moves this court to dismiss this appeal because not taken and perfected within the time fixed by statute.

The statute provides that an appeal, from the district court to the supreme court, from an order granting or refusing a new trial, may be taken within sixty days after the order is made and entered in the minutes of the court, or filed with the clerk. Comp. Laws 1888, Sec. 3635, Subd. 3. In this case the appeal was not taken until eighty-eight days after the order appealed from was made and entered. We think the order of the district court granting an extension of time within which plaintiff might perfect his appeal beyond the time allowed by the statute was unauthorized. The motion to dismiss the appeal is sustained, and the appeal dismissed.

BLACKBURN J., and HENDERSON, J.,...