Elliot v. Whitmore

• Decision Date: 19 June 1894
• Docket Number: 425
• Citation: 37 P. 463,10 Utah 253
• Court: Utah Supreme Court
• Parties: LEWIS A. SCOTT ELLIOT, RESPONDENT, v. GEORGE C. WHITMORE AND ANOTHER, APPELLANTS

37 P. 463

10 Utah 253

LEWIS A. SCOTT ELLIOT, RESPONDENT, v. GEORGE C. WHITMORE AND ANOTHER, APPELLANTS

No. 425

Supreme Court of Utah

June 19, 1894

APPEAL from the District Court of the Third Judicial District, Hon Charles S. Zane, Judge.

Action by Lewis A. Scott Elliot against George C. Whitmore and another for damages and an injunction. From an order dismissing and denying defendants' motion for a new trial, they appeal.

Reversed and remanded.

Mr. E D. Hoge and Messrs. Brown & Henderson, for appellants.

The statute under which this statement is prepared and under which the orders extending the time were made, is 2 Comp Laws 1888, § 3402, subd. 3 and § 526. The ruling of the district court and of the referee is based wholly upon the authority of Clark v. Strouse, 11 Nev., citing Campbell v. Jones, 41 Cal. 518, and various other cases in California reports prior to 47 Cal., stating that the order extending the time must be filed. The statute of Nevada in force at the time of Clark v. Strouse, was copied from the former practice act of California, and was wholly and absolutely different from the present statute of California from which our statute is taken. The California statute from which ours is taken is found in 3 Deering's An. Stat. § 659, subd. 3; this was passed and approved March 11, 1872. See also Hayne on New Trial, § 145. Nevada still retains the old statute, and their practice under it is different. For notice of this difference see 3 Estes Plead. (2d ed.), 366-7.

Mr. C. S. Varian and Messrs. Zane & Putnam, for respondent.

An order extending the time to file and serve a statement must not only be signed by the judge, but must be filed within court within the time given by statute. This rule was settled in California over 20 years ago, and our statute was followed by the supreme court of Nevada and has never been questioned. Campbell v. Jones, 41 Cal. 515; Clark v. Strouse, 11 Nev. 76. Where there is no statement upon motion for a new trial, the motion should be dismissed. Strathern v. Dakins, 63 Cal. 478. There was no statement in this case. The referee having properly refused to settle the same, the only thing left for the court to do was to dismiss the motion, and such has been the ruling from the earliest time. The following are a number of the cases wherein this principle has been approved: 2 Cal. 306; 3 Cal. 89; 8 Cal. 510; 9 Cal. 207; 11 Cal. 132; 12 Cal. 280; 13 Cal. 170; 14 Cal. 196; 18 Cal. 203; 20 Cal. 114, 177, 337; 22 Cal. 265; 23 Cal. 461; 25 Cal. 479, 584; 26 Cal. 279; 27 Cal. 107, 408; 28 Cal. 410, 416; 30 Cal. 587; 32 Cal. 303, 629; 38 Cal. 210; 39 Cal. 24, 700; 40 Cal. 77; 41 Cal. 575; 43 Cal. 320; 45 Cal. 112; 47 Cal. 164, 416, 624, 50 Cal. 120; 54 Cal. 542, 584; 57 Cal. 292; 61 Cal. 191; 63 Cal. 417, 478.

MERRITT, C. J. MINER and SMITH, JJ., concur.

OPINION

MERRITT, C. J.:

This is an appeal from an order made by the Third District Court dismissing and denying defendants' motion for a new trial. From the bill of exceptions in the record it appears that the cause was tried before J. H. Harris, as referee, to whom it had been referred by order of the court. The referee made and filed his report in favor of plaintiff, on the 9th of May, 1893, and on the same day judgment was entered in pursuance thereof, and notice of the judgment and decision was served on defendants' attorneys. On the 18th of May, 1893, and within 10 days after judgment, defendants served and filed their notice of intention to move for a new trial, upon a statement to be prepared. The 28th of May, when the 10 days allowed by statute for settling statement would expire, fell on Sunday. On Saturday, the 27th of May, the defendants obtained from Judge Bartch, Judge of the Third District Court, an order in writing, dated on that day, and duly signed by him, extending the time in which to prepare and serve statement on motion for new trial for 10 days from May 27, 1893. This order was filed with the clerk in the cause on May 30, 1893. It will be seen from this statement that the statutory time for preparing and serving proposed statement on motion for new trial expired on Monday, May 29th; that the order made by Judge Bartch, made on Saturday, the 27th of May, was within this time, but it was not filed in the cause until next day, after the time would have expired; and upon this order the question in this case arises. Other orders were made afterwards, further extending the time, and defendants prepared and served upon plaintiff a proposed statement; and, no amendments being offered after the expiration of 10 days, the proposed statement was presented to the referee, and he refused to sign it, and thereupon the plaintiff moved the court to dismiss the motion for new trial, on the ground "that the statement on motion for new trial in this action was not served within the time allowed therefor by law, or within any time in addition thereto allowed by said court or judge thereof." On the hearing of this motion, the order was made from which this appeal is taken.

No question is made but that all the proceedings subsequent to the filing of the order of Judge Bartch on May 30th are regular and in time, if that order is valid and operative. The plaintiff claims, and the court below held, that this order of Judge Bartch is invalid, and has no force or effect whatever, because it was not filed within the time limited by statute. The statute relating to the matter in controversy (2 Comp. Laws, § 3402, subd. 3) reads as follows: "If the motion is to be made on a statement of the case, the moving party must within ten days after service of the notice, or such further time as the court, in which the action is pending, or the judge thereof, may allow, prepare a draft of the statement, and serve the same, or a copy thereof, upon the adverse party," etc. The statute does not in terms require the order to be filed, but it is claimed that the order is not in any way connected with the case until it is filed, and, if this is not done before the time expires, it has no force whatever; and the cases of Campbell v. Jones, 41 Cal. 515, and Clark v. Strouse, 11 Nev. 76, are cited and relied upon to support that contention. The case of Campbell v. Jones arose under section 195 of the old practice act of California, which is in many respects different from the present statute of California from which our statute above quoted is taken. The point here in issue was not raised in that case. The only point there in controversy was whether an oral promise of the judge, made out...