Davis v. Lynham

• Decision Date: 05 June 1926
• Docket Number: 4295
• Citation: 67 Utah 283,247 P. 294
• Court: Utah Supreme Court
• Parties: DAVIS v. LYNHAM et al

247 P. 294

67 Utah 283

DAVIS v. LYNHAM et al

No. 4295

Supreme Court of Utah

June 5, 1926

Appeal from District Court, Second District, Weber County; George S Barker, Judge.

Action by Daniel M. Davis against Mary Ann Lynham and Jane Ann Deppe and another. Judgment for plaintiff against the named defendants, and they appeal.

AFFIRMED.

J. W Stringfellow, of Salt Lake City, for appellants.

Bagley Judd & Ray, of Salt Lake City, for respondent.

FRICK, J. GIDEON, C. J., and THURMAN, CHERRY, and STRAUP, JJ., concur.

OPINION

FRICK, J.

The plaintiff has filed a motion in this case to strike the bill of exceptions on the ground that the same was not presented for allowance or settlement within the time required by our statute. The record shows that the appellants did not present their proposed bill of exceptions for settlement until about three or four days after, under the provisions of our statute, it should have been presented for allowance and settlement. Before presenting the bill, however, appellants, through their counsel, served notice upon plaintiff's attorneys that counsel at a day named in the notice would apply to the district court for leave to allow and settle the bill out of time. In connection with the notice aforesaid, counsel also served and filed an affidavit in which the reasons why the bill was not presented for settlement within the statutory time were fully set forth. At the hearing of the application, counsel for appellants also testified, and in his testimony supplements the facts set forth in the affidavit aforesaid. The district court of Davis county, after having heard and considered the statements contained in the affidavit and the oral testimony of counsel, found that the reason why the proposed bill of exceptions was not presented within the time required by our statute "was due to severe sickness," and, therefore, constituted "excusable neglect" within the purview of Comp. Laws Utah 1917, § 6619. Pursuant to the finding of the court it entered an order by which it allowed and settled the bill of exceptions in this case. It is contended on behalf of plaintiff that the facts upon which the district court acted were insufficient to invoke its jurisdiction to allow and settle the bill of exceptions. Counsel have cited no authorities in support of their contention. Upon the other hand, this court has on several occasions held that a district court may allow and settle bills of exceptions after the statutory time has elapsed, provided it is made to appear to the satisfaction of the court that the party seeking the settlement of the bill through excusable neglect failed to present the same for allowance and settlement within the time fixed by Comp. Laws Utah 1917, § 6969. See Tooele Imp. Co. v. Hoffman, 44 Utah 532, 141 P. 744; Allen v. Garner, 45 Utah 39, 143 P. 228; Moyle v. McKean, 49 Utah 93, 162 P. 63. It is held in those cases that to some extent at least the matter rests within the sound discretion of the court to which the application is made, and, unless it is made apparent that the court abused its discretion, the appellate court cannot interfere by striking the bill of exceptions. In view that in this case due notice of the application was served upon plaintiff's counsel, and that they in no way controverted or explained the facts as claimed by appellants, we are clearly of the opinion that the district court did not abuse its discretion in allowing and settling the bill of exceptions in this case. Plaintiff's motion to strike the bill of exceptions, therefore, should be, and it accordingly is, overruled.

We now proceed to a consideration of the merits.

The action was commenced against both of the appellants and against one George Lynham. Before trial it was, however, dismissed as against George Lynham, and he will not be further noticed.

The action involves the exact location of the boundary line between plaintiff's and appellants' parcels of land in Davis county, Utah. In view that the findings fully reflect the issues presented by the pleadings and the evidence, we shall set them forth somewhat fully in this opinion. After finding some preliminary matters, the court found that the plaintiff is the owner of that certain parcel of land, the south boundary line of which is in dispute in this action, fully describing the same by metes and bounds that the appellants are the owners of the parcels of land lying immediately south of, and adjoining, plaintiff's parcel, which parcels are also fully described by metes and bounds; that for more than 20 years immediately preceding the 22d day of May, 1922 (the date upon which the alleged trespasses were committed as hereinafter set forth), the plaintiff and his predecessors in interest "have been in the possession, occupation, and use of the parcel of land" described as aforesaid, and that the south boundary line of which for more than 20 years last past was as follows: [here follows a full description of the boundary line by giving courses and distances which are as claimed by plaintiff]; "that said boundary line as herein last above described has been acquiesced and agreed in and to by the plaintiff and these defendants and their predecessors in interest for more than 20 years next prior to the last date hereinabove named; that said line has been marked, fixed, defined, and determined by the building upon said line and a maintenance thereon of a substantial boundary line fence which fence as a boundary line has been acquiesced in and agreed to by the plaintiff and defendants and their predecessors in interest for the time hereinabove set out, after evidenced by the fact that the defendants or their predecessors in interest have permitted old trees to stand along the boundary line as hereinabove described, to which old trees there have been attached the wires completing the fence; which trees today stand along and mark said boundary line; that defendants or their predecessors in interest, at least 15 years next prior to the date of the trial of this cause of action, built and constructed a buggy house and lean-to along said fence line, making the northerly side of said buggy house and lean-to part of said fence line; that defendants and their precessors in interest for more than 20 years next prior to the date hereinabove referred to, the 1st day of May, 1922, in leveling up and cleaning their said land to the south of said fence, leveled and cleared up to the boundary as fixed by said fence, and have in leveling left a substantial bank along said fence line showing from where part of the soil was taken to do the leveling, and have thrown and dumped along said fence line rock and other debris cleared from the land leveled; that plaintiff and his predecessors in interest have continuously and uninterruptedly, for a period of more than 20 years next prior to the date last above referred to, occupied and used their said land up to said fence and boundary line without molestation or objection on the part of the defendants, or either of them or their predecessors in interest; that for a period hereinabove set out the plaintiff and his predecessors in interest have maintained, improved, by way of orchards and gardens on his said property, up to the fence and boundary line hereinabove...