Butter v. Lamson

• Decision Date: 02 September 1905
• Docket Number: 1624
• Citation: 29 Utah 439,82 P. 473
• Court: Utah Supreme Court
• Parties: BUTTER et al. v. LAMSON. LAMSON v. HAYS et al

82 P. 473

29 Utah 439

BUTTER et al. v. LAMSON.

LAMSON v. HAYS et al

No. 1624

Supreme Court of Utah

September 2, 1905

APPEAL from District Court, Salt Lake County; Wm. C. Hall, Judge.

Two actions, one by John Butter and S. Hays against Allan G Lamson, and the other by said Lamson against said Butter and Hays. From adverse judgments, Lamson appeals.

AFFIRMED.

Frick &amp Edwards for appellant.

Frank Hoffman, L. R. Rogers, and Snyder & Wight for respondents.

STRAUP J. BARTCH, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

These two cases were consolidated, tried together, and both are attempted to be brought here for review on an appeal from the judgments.

These judgments must be affirmed for the following reasons: Section 3301, Revised Statutes 1898, provides:

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

Section 3302 provides:

"The judgment roll and bill of exceptions, if there be one, shall constitute the record on appeal to the Supreme Court."

Upon the appeal being perfected, filing and serving notice and undertaking, the clerk of the court from which the appeal is taken, at the expense of the appellant, shall forthwith transmit to the Supreme Court the papers constituting the record on appeal Section 3317 provides:

"If the appellant shall fail to cause such papers to be transmitted and filed in the Supreme Court within thirty days after the perfecting of the appeal, the appeal may be dismissed on motion of the respondent."

A rule of this court also provides that the transcript of record shall be filed in this court within thirty days after such appeal shall have been perfected unless further time has been given by this court, or a justice thereof, on good cause shown by affidavit. The record discloses that these judgments were entered October 21, 1903. On December 24, 1903, a motion for a new trial was overruled, and notice thereof was served December 29, 1903. On May 13, 1904, appellant served and filed a notice of appeal, and on May 17, 1904, filed an undertaking on appeal. No transcript on appeal, however, was filed in this court until December 23, 1904, more than seven months after the appeal was perfected, notwithstanding the statute and a rule of this court provided it shall be done within thirty days. On the first day of the October, 1904, term of this court, a motion was made by the respondent to dismiss these appeals because no transcript had then been filed. Appellant attempted to excuse the delay and failure by showing that the judge of the district court from time to time extended the time to settle a bill of exceptions to and including the 15th day of October, 1904, and that a transcript of the reporter's notes of the evidence could not be had and was not procured until September 29, 1904. The motion to dismiss the appeals was then denied. But thereafter, the transcript not having been filed until December 23, 1904, at the February, 1905, term of this court, a new motion was made by the respondent to dismiss these appeals because the transcript on appeal was not filed within time.

This motion must prevail. By our refusal to grant the first motion to dismiss, we have excused appellant for everything by way of delay that existed prior to and at the time of the filing of the first motion, but he cannot be excused forever. Notwithstanding he obtained the reporter's notes on September 29, 1904, and notwithstanding the bill of exceptions is only a transcript of the evidence, as furnished by the reporter, which under our Code is permissible, yet we find the bill of exceptions was not settled until December 13, 1904, and the transcript on appeal not filed until December 23, 1904. In other words, the time from the filing of the first motion to dismiss until the filing of the transcript with this court was nearly three months. This delay is wholly unaccounted for, and no explanation thereof is at all attempted, or any reason offered why the bill could not have been settled long prior to December 13, 1904, and the transcript filed with this court long prior to December 23, 1904...