Candland v. Mellen

• Decision Date: 30 July 1915
• Docket Number: 2734
• Citation: 151 P. 341,46 Utah 519
• Court: Utah Supreme Court
• Parties: CANDLAND v. MELLEN

151 P. 341

46 Utah 519

CANDLAND v. MELLEN

No. 2734

Supreme Court of Utah

July 30, 1915

Appeal from District Court, Third District; Hon. F. C. Loofbourow Judge.

Action by Genevieve Candland, for whom, after her death, A. D Candland, her administrator, was substituted, against J. W Mellen.

Judgment for plaintiff. Defendant appeals.

REVERSED and case remanded, with directions to vacate the judgment and dismiss the action.

Stewart, Stewart and Alexander, for appellant.

M. E. Wilson and E. G. Palmer, for respondent.

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

Genevie Candland brought this action to recover damages for an alleged personal injury. A judgment was rendered in her favor. The defendant appeals. The judgment was rendered and entered on the 30th of April, 1914. On May 2nd a motion for a new trial was served and filed. The motion was overruled on the 9th, of which notice was given on the same day. On May 27th, the court granted the defendant "60 days to prepare, serve, and file a bill of exceptions"; on July 17th, further time, to and including August 16th; on August 11th, to and including September 15th; on September 12th, to and including October 15th; on October 13th, to and including November 2nd. Genevie Candland died on the 5th of August, 1914. On the 2nd of October of that year, an administrator was appointed. On the 22nd of October, the administrator was substituted as the party plaintiff. On the 27th of October the defendant served on the attorneys for the administrator, who also represented Mrs. Candland in the action, his proposed bill of exceptions. It was settled on the 30th of October. On that day the defendant served on the attorneys for the administrator, and filed, his notice of appeal. Within thirty days thereafter the transcript on appeal was filed.

A motion is made to dismiss the appeal on alleged defects in the notice of appeal, and uncertainty of descriptions of the judgment appealed from. The notice reads:

"The defendant does hereby appeal from the verdict and judgment entered on the verdict in the above-entitled cause on or about the 30th day of April, 1914, and from the order overruling a motion for a new trial, made and entered on the 9th day of May, 1914, and from the whole thereof."

Of course, no appeal lies from the order overruling the motion for a new trial. An appeal lies only from a final judgment entered in the cause. The judgment was entered on the 30th of April. It became final when the motion for a new trial was overruled on the 9th of May. The point made is that the final judgment was entered on the 9th of May; that that was the only appealable judgment, and, since the notice does not state that the appeal was taken from the judgment entered on the 9th of May, the notice did not properly identify or describe the judgment which was appealable, but described one unappealable. We do not see anything to this. There was no judgment rendered or entered on the 9th of May. The only judgment rendered and entered in the cause was rendered and entered on the 30th of April. Because of the motion for a new trial made within the time allowed by the statute, the judgment did not become final until the motion was disposed of. By overruling the motion, the court refused to disturb the judgment which theretofore had been made and entered on the 30th of April. The judgment thus stood as it was made and entered. The notice sufficiently identified and described that judgment as the judgment appealed from, the only judgment made and entered in the cause. The reference in the notice to the verdict is surplusage. The statement that the appeal is also taken from the order overruling the motion for a new trial does not destroy nor affect the statement that the appeal is taken from the judgment. The reference to the order can but serve the purpose to show when the judgment became final and the right to an appeal began. The motion to dismiss is denied.

A motion also is made to strike the bill of exceptions on grounds: (1) That when the court, on July 17th, extended the time to serve and file a bill, the time had expired, and that the court then was without power to grant further time; and (2) that the court was without power to make orders extending the time after the death of Mrs. Candland and before the appointment and substitution of an administrator as plaintiff in the cause. The first is based on the order of May 27th, granting the defendant sixty days to serve and file a bill. It is urged the sixty days date from May 9th when the notice of overruling the motion for a new trial was served. The time from that date until the next date, July 17th, when further extension was granted, is sixty nine days. Thus it is argued that the July order was made after the time theretofore granted had expired. We think the proper construction of the May 27th order is sixty days from that date; sixty days from the date the order was made. Counting sixty days from that time, the order of July 17th was within time.

The second ground is based on the proposition that after the death of Mrs. Candland, and before the appointment and substitution of an administrator, the court was without power to grant an extension of time to serve and file a bill. To support that the cases of Judson v. Love, 35 Cal. 463, Shartzer v. Love, 40 Cal. 93, Pedlar v. Stroud, 116 Cal. 461, 48 P. 371, and Coffin v. Edgington, 2 Idaho 627, 23 P. 80, are cited. We do not think they support the contention. They are cases to this effect: That the service of a notice of an appeal or motion for a new trial, after the death of the other party and before the appointment and substitution of an administrator, was of no effect and did not confer jurisdiction to proceed. We think that is true. Had the defendant attempted to serve a bill or to have it settled after Mrs. Candland's death, and before the appointment and substitution of an administrator, such service or settlement would not be good. But the bill was not served nor settled until an administrator was appointed and substituted in the cause. The death of Mrs. Candland, after judgment could not prevent the defendant from protecting his rights to further proceed in the cause when there was an administrator. One of two things must be true: Either the time in which the defendant was required to serve a bill was suspended by the death of the original plaintiff and until an administrator was appointed, or the court, by orders, on the defendant's application, had the power to keep the time alive until there was an administrator. Doing that is not proceeding in the cause without an adversary. Perhaps the better rule is that the time from the death to the appointment of the administrator was suspended. If that be not true, then must the other be true; for, if neither be true, then was the defendant remediless. The motion to strike the bill is denied.

The defendant, under contract with Salt Lake City, was engaged in curbing and guttering streets near where the deceased resided. It is charged that he negligently left excavations exposed, unguarded, and unlighted, by reason of which plaintiff's intestate, in the nighttime, and on the 20th of September, 1913, stepped into an excavation, thereby wrenching and spraining her leg, "so that said plaintiff was and still is made to suffer great mental and physical pain and anguish and so that she was made and still is sick, sore, and lame, and so that she has been confined to her bed from the 20th day of September, 1913, until now, and is still so confined, and so that said leg has been wholly useless to her, and so that she has thereby been prevented from walking and from performing her household duties as a housewife; that, by reason of the aforesaid injury, said plaintiff has been and for all time will be almost totally disabled, and has been and will be put to great expense in curing said injury, to wit, $ 800"; and "that by reason of the matters and things hereinbefore set forth, plaintiff has suffered damage in the sum of $ 5,000." She had judgment for $ 500.

Complaint is made of the court's refusal, at the conclusion of all the evidence, to direct a verdict in the defendant's favor. The grounds of the motion are: (1) That in the...