Canning v. Fried

• Decision Date: 27 February 1914
• Citation: 139 P. 448,48 Mont. 560
• Parties: CANNING v. FRIED.
• Court: Montana Supreme Court

139 P. 448

48 Mont. 560

CANNING v. FRIED.

Supreme Court of Montana

February 27, 1914

Appeal from District Court, Silver Bow County; J. B. Poindexter Judge.

Action by Matthew F. Canning against Max Fried. From an order denying a new trial, defendant appeals. Affirmed.

Peter Breen, of Butte, and Henry C. Smith, of Helena, for appellant.

William Meyer, of Butte, for respondent.

HOLLOWAY J.

On March 26, 1912, a judgment upon a verdict was entered in favor of the plaintiff and against the defendant, in an action for damages for malicious prosecution. Some time thereafter--the record does not disclose when--defendant was granted 60 days, in addition to the time allowed by law within which to prepare a bill of exceptions in support of his motion for a new trial. On April 26th another like order was made, and on July 1st a third extension of 60 days' additional time was granted by the trial court. All of these orders extending the time were made without the consent of the adverse party. The bill of exceptions was finally served on August 30, 1912. Plaintiff immediately presented written objections to its settlement on the ground that it had not been presented in time. Defendant then moved the court to relieve him from his default in failing to present the proposed bill within seasonable time, upon the grounds of mistake, inadvertence, surprise, and excusable neglect, and supported the motion by an affidavit of Mr. T. T. Lyon, his former attorney. On December 19, 1912, the court granted this motion on condition that plaintiff's objections and these other subsequent proceedings be incorporated in the bill, and further time was granted for the presentation and settlement. The suggested amendments were made, the bill of exceptions settled on February 13, 1913, and the motion for a new trial denied on March 8, 1913.

Section 6788, Revised Codes, requires that a bill of exceptions shall be presented for settlement within 10 days after the entry of the judgment upon a verdict, or within such further time as the court or judge may allow. Section 7190, Revised Codes provides that the court or judge cannot extend the time for presenting a bill of exceptions more than ninety days without the consent of the adverse party, so that the order made on July 1, 1912, granting defendant further time was a nullity, and the bill of exceptions presented on August 30th came too late, and plaintiff's objection to it upon that ground was well taken.

Without determining whether the provisions of section 6589, Revised Codes, have any application to the predicament in which a party finds himself when he has not presented his bill of exceptions in time, but assuming that he is then in default, and may invoke the rule of that section for relief, still the authority conferred can be exercised only when the discretion of the court is set in motion by an application supported by a showing of mistake, inadvertence, surprise, or excusable neglect. If defendant can claim any benefit under that section, it is only by complying with its requirements. The affidavit of Mr. Lyon, upon which defendant relied, and the trial court acted is barren of any facts which tend to excuse the delay. It is asserted in the affidavit that the bill of exceptions could not be prepared without a transcript of the stenographer's notes of the testimony taken at the trial; that the affiant made repeated requests of the stenographer for such a transcript; that the stenographer informed him it could not be delivered until the latter part of June, and in fact was not secured until June 25th. There is not presented any affidavit by the stenographer, and Mr. Lyon is altogether silent as to when the demands upon the stenographer were made, or whether he tendered the legal fees. For all that he says, he may not have requested the transcript until June. There is not a word in explanation of the stenographer's delay. Nothing is disclosed as to whether Mr. Lyon applied to the district court for an order compelling the stenographer to deliver the transcript at an earlier date. All that we have from the stenographer is conveyed by a hearsay declaration, which under these circumstances is not entitled to any evidentiary value. Mr. Lyon is frank enough to say in his affidavit "that the deponent was not aware of the time * * * of such limitation upon the court's power to grant such extension of time, and therefore did not procure the consent of counsel of plaintiff to such order." But a mistake as to the law is not the mistake contemplated by section 6589 above, and ignorance of the law does not constitute an excuse within the meaning of that statute. Willoburn Ranch Co. v. Yegen, 45 Mont. 254, 122 P. 915; Donlan v. Thompson Falls C. & M. Co., 42 Mont. 257, 112 P. 445; Mantle v. Casey, 31 Mont. 408, 78 P. 591.

It is the rule in this state that if, upon a motion to set aside a default, the showing made leaves in the mind of the court a doubt as to whether it should be granted, that doubt is to be resolved in favor of the motion (Greene v. Montana Brewing Co., 32 Mont. 102, 79 P. 693); but the rule presupposes that a proper showing under the statute has been made, and, in many instances where defaults have been set aside without such showing, the orders have been reversed ( ...