Findlay v. National Union Indemnity Co

Decision Date07 December 1934
Docket Number5332
Citation85 Utah 110,38 P.2d 760
CourtUtah Supreme Court
PartiesFINDLAY v. NATIONAL UNION INDEMNITY CO

Appeal from District Court, Third District, Salt Lake County; R. I McDonough, Judge.

Action by Roxie Findlay against the National Union Indemnity Company. Judgment for plaintiff, and defendant appeals. A motion to strike the bill of exceptions having been granted defendant filed a petition for a rehearing or for reinstatement of the bill.

Petition for reinstatement denied, and bill of exceptions stricken, and judgment below affirmed.

Hamilton Gardner and H. A. Rich, both of Salt Lake City, for appellant.

K. C Tanner, of Salt Lake City, for respondent.

MOFFAT, Justice. STRAUP, C. J., and ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

MOFFAT, Justice.

On June 30, 1930, the defendant and appellant, National Union Indemnity Company, issued a policy of public insurance to one Sam Holland upon an automobile truck which he owned. The truck was used in Holland's business to haul goods between various places in Utah. Holland employed Perry A. Day to drive the truck. He never drove it himself. On September 15, 1930, Holland directed Day to take a truckload of Salt from Salt Lake City to Cedar City, Utah. About noon of September 18, 1930, Day started upon the trip to Cedar City. Upon Day's invitation and accompanying him on this trip were La Vare Snyder, Mrs. La Vare Snyder, Glenn Snyder, heir five year old son, and Gerald Findlay, a child aged about six years, of whom the plaintiff and respondent, Roxie Findlay, is the mother. Mrs. Findlay, the plaintiff, Mrs. Perry A. Day, and Mrs. La Vare Snyder are sisters, so that all of the parties upon the truck on the trip were related.

Day drove the truck upon the trip until a point about 18 miles north of Holden in Millard county, Utah, was reached. At this point Day turned over the truck to Snyder his brother-in-law, to drive. Shortly after Snyder started to drive, he ran the truck into a culvert. The truck was overturned. The two children were thrown out and injured, and the Findlay child died some time after. On July 15, 1931, this suit was filed, being one among others growing out of injuries alleged to have been sustained in the accident and claiming indemnity under the insurance policy issued to Holland. This cause was tried to a jury, and on November 25, 1931, judgment was duly entered upon the verdict in favor of the plaintiff and against the defendant and appellant.

Motion for a new trial was made, argued, and submitted, and on March 15, 1932, denied by the trial court. Notice of the denial of the motion for a new trial was served on the 16th and filed on the 17th day of March, 1932. Notice of appeal to the Supreme Court was served and filed on the 2d day of April, 1932, and within time an undertaking was duly filed, perfecting the appeal. On April 29, 1932, the district court entered an order granting the defendant and appellant sixty days from the 1st day of May, 1932, in which to serve, settle, and file bill of exceptions. On the same date an order was made by the Supreme Court granting appellant sixty days from May 1, 1932, in which to file transcript on appeal. On June 30, 1932, appellant filed a statement showing service of proposed bill of exceptions; acknowledgment of receipt of such was made; and objections to filing and settlement were made by the attorney for plaintiff and respondent, upon the ground the trial court was without jurisdiction to make the order. On July 7, 1932, the respondent filed a motion in this court to dismiss the appeal. On the 19th day of September, 1932, respondent's motion to dismiss the appeal was denied, and appellant's motion to be relieved from its default in failing to file the transcript on appeal within time was granted. On November 5, 1932, respondent served and filed notice of motion to strike appellant's bill of exceptions. This motion to strike the bill of exceptions was argued and briefs filed thereon, and by the court taken under advisement. On December 30, 1932, by order of this court the bill of exceptions was stricken. Subsequently a motion was again made by the respondent to dismiss the appeal. Appellant also filed a motion or petition for a rehearing on the motion to strike the bill of exceptions. Decision upon the petition for rehearing on the striking of the bill of exceptions was reserved and the parties permitted to argue the cause upon merits, and a decision to be had thereon if the court should find that there was error in striking the bill of exceptions.

It therefore becomes necessary to examine the questions relating to the striking of the bill of exceptions, and, if there is cause for reinstatement of the bill, then to proceed to an examination of the cause on merits. As a general rule, a motion to strike the bill of exceptions comes before the court at the same time the cause is argued to the court on its merits, and, but for special reasons or where the striking of the bill may leave no available assignments of error because of the striking of the bill, the motion to strike or as here, the motion to reinstate the bill should be considered first. Jeremy Fuel & Grain Co. v. Denver & Rio Grande R. Co., 59 Utah 266, 203 P. 863. If, however, the order heretofore made striking the bill is correct, all of the questions raised by the assignments of error being in the bill of exceptions (except those not argued), nothing is left but the judgment roll for review, and, while the motion heretofore made to dismiss the appeal which was denied upon the ground that the motion to dismiss was prematurely made the appeal would as a consequence fall, unless the motion to reinstate the bill should be granted.

At the time the motion to strike the bill of exceptions was argued and submitted, and thereafter, and before the entry of the order striking the bill, the court fully considered the questions involved and briefs upon the questions argued. No opinion was written upon the matter at that time, although entered on the 30th of December, 1932. Promptly following the orally announced position of the court, other and further motions, petitions, and orders were made resulting in an order permitting all matters involved to be set down for hearing and presenting a situation that, should the court find cause to reinstate the bill theretofore stricken, the matter would then be considered at large and upon merits.

The situation now calls for an examination of the statute relating to the prescribed procedure in preparing, settling, filing, and signing the bill of exceptions. A brief restatement of the facts before a statement of the law and reasons for the court's position in the matter will tend to make the applications discussed easier. Before passing to that matter, we desire to state what has been many times stated that the fundamental purpose of the code or law relating to procedure is to bring about a fair trial of the issues on merits. This is the purpose and aim of the courts. Rights should not be sacrificed and courts are not disposed to permit rights to be lost or a meritorious cause to fail of determination on merits because of technical mistakes, inaccuracies, or omissions in pleadings or other irregularities within the power of the court to grant relief when properly and timely presented. The language of a statute, remedial in its nature, should be liberally construed. As aptly put by counsel for appellant in the instant case, the result of the striking of the bill will deprive the appellant of the benefit of its appeal being heard upon its merits. This is true. It is likewise true that, where jurisdiction is involved, errors, defaults, and oversights, though honestly thought not to be such, give no power for relief when none is provided by the law. It is likewise true that a statute is not construed either because of merits of, or hardship resulting from, a given case; but it must be construed so as to give effect to its purpose in the light of litigation or procedure generally arising thereunder and to the legislative intent. An isolated case may result in inconvenience, hardship, or loss, but, if the cause of right and justice generally is aided by the construction, the individual application must conform.

Briefly, the only essential in the statute in question here is the element of time. Procedural matters are essentially time limitations. In determining substantive rights by the process of submitting controverted issues to judicial tribunals, whether or not such issues may be determined upon the respective merits depend largely upon the observance by the parties litigant of certain definitely fixed time limitations. From the day of the service of the summons or filing of the complaint to the filing of the remittitur from the court of last resort, almost every step to be taken in the procedure, or moving forward of the controversy, has a time limitation imposed, and in many instances a penalty for failure to act within the limitation fixed. So important is the element of time in such matter that, unless the required acts are done within the prescribed limits of time, what were otherwise valuable rights are lost or cease to exist. From failure to observe these limitations, in certain instances and within the time limitations therefor, a procedure is prescribed by the resort to which relief from defaults may be had; from others, for jurisdictional reasons, no relief may be had. Of the latter type is the time within which an appeal must be perfected. Of the former is the instant case, had timely and proper application upon good cause shown been made.

In the instant case the cause was tried, judgment entered, and a motion for a new trial filed and heard. The motion was denied on the...

To continue reading

Request your trial
4 cases
  • Hutchinson v. Burton
    • United States
    • Montana Supreme Court
    • September 20, 1952
    ...without such relief the court has no jurisdiction after the lapse of the statutory time to settle the bill. Findlay v. National Union Indemnity Co., 85 Utah 110, 38 P.2d 760. 'It is well settled that appellate courts have always been and are favorably disposed toward such action upon the pa......
  • Prunty v. Equitable Life Assur. Soc. of the United States
    • United States
    • Utah Supreme Court
    • March 9, 1935
    ... ... the United States, a corporation, to the Ogden Union Railway ... & Depot Company, insuring employees of the Depot Company ... v. Beneficial Oil ... Co., 71 Utah 348, 266 P. 267; Findlay v ... National Union Indemnity Co., 85 Utah 110, 38 P.2d ... ...
  • Askwith v. Ellis
    • United States
    • Utah Supreme Court
    • December 7, 1934
  • Conover v. Board of Education of Nebo School Dist.
    • United States
    • Utah Supreme Court
    • December 13, 1946
    ... ... court may grant relief when timely pleaded. Findlay ... v. National Union Indemnity Co., ... [175 P.2d 213] ... 85 Utah ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT