Burns v. Napton

• Decision Date: 10 March 1902
• Citation: 68 P. 17,26 Mont. 360
• Parties: BURNS v. NAPTON, Judge.
• Court: Montana Supreme Court

68 P. 17

26 Mont. 360

BURNS v. NAPTON, Judge.

Supreme Court of Montana

March 10, 1902

Mandamus by Felix Burns against Welling Napton, judge of the Third judicial district. Alternative writ quashed, and proceeding dismissed.

C. M Parr, for plaintiff.

PIGOTT J.

Mandamus--Original. This is a proceeding in mandamus. Upon application of the plaintiff, an alternative writ was issued commanding the defendant, as judge of the district court of Powell county to settle and sign a bill of exceptions in the case of Burns against Kelly et al., or show cause why he did not do so. The defendant answered, and the cause has been submitted upon the application and answer. On these the plaintiff demands a peremptory writ. We have not had the benefit of any argument oral or written, in behalf of the defendant.

So far as it is deemed necessary to state them, the facts are these: On May 8, 1901, judgment against the plaintiff was entered in Burns against Kelly et al. On May 9th the plaintiff perfected an appeal from the judgment. On May 15th the parties to that action stipulated in writing that the plaintiff should have 20 days' additional time within which to "prepare, serve, and file statement on appeal." On June 3d the plaintiff served on the defendants a draft of his proposed bill of exceptions, and on June 4th delivered it to the clerk of the district court. On June 11th the defendants served on the plaintiff their proposed amendments, expressly reserving the right to object upon several grounds to the settlement of the bill. On June 14th the plaintiff served notice that the proposed amendments would not be adopted. The plaintiff did not, within 10 days after the service of the amendments, either present the proposed bill and amendments to the judge, or deliver them to the clerk for the judge. On June 25th, 14 days after the amendments were served. Counsel for the plaintiff notified the defendants by letter that he had written to the "judge asking if he will settle the bill of exceptions in the case of Burns against Kelly et al.," on July 1st. The matter of the settlement coming on to be heard on July 1st, the defendants objected to a settlement upon many grounds, one being that the plaintiff did not, within 10 days after service of the proposed amendments, present the bill and amendments to the judge upon five days' notice to the defendants, nor deliver them to the clerk for the judge within 10 days after the service of the amendments. The judge sustained the objections, and refused to settle the bill.

Section 1155 of the Code of Civil Procedure provides: "When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within ten days after the entry of judgment, if the action was tried with a jury, of after receiving notice of the entry of judgment, if the action were tried without a jury, or such further time as the court in which the action was pending or a judge thereof, may allow prepare the draft of a bill, and serve the same, or a copy thereof, upon the adverse party. Such draft must contain all the exceptions taken upon which the party relies. Within ten days after such service the adverse party may propose amendments thereto and serve the same, or a copy thereof, upon the other party. The proposed bill and amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill, to the judge who tried or heard the case, upon five days' notice to the adverse party, or be delivered to the clerk of the court, or judge. When received by the clerk he must immediately deliver them to the judge, if he be in the county; if he be absent from the county, and either party desire the papers to be forwarded to the judge, the clerk must, upon notice in writing of such parties, immediately forward them by mail, or other safe channel; if not thus forwarded, the clerk must deliver them to the judge immediately after his returns to the...