Fraser v. Clark

• Citation: 137 Mont. 362,352 P.2d 681
• Decision Date: 19 May 1960
• Docket Number: No. 9972,9972
• Parties: R. B. FRASER and Rosabelle Fraser, Plaintiffs and Appellants, v. E. C. CLARK and Evan Owens, Defendants and Respondents.
• Court: United States State Supreme Court of Montana

Page 681

352 P.2d 681

137 Mont. 362

R. B. FRASER and Rosabelle Fraser, Plaintiffs and Appellants, v. E. C. CLARK and Evan Owens, Defendants and Respondents.

No. 9972.

Supreme Court of Montana.

Submitted March 4, 1960.

Decided May 19, 1960.

Kurth, Connor & Jones, Lee Overfelt, Billings, Ralph J. Anderson, Helena, for appellant. Ralph J. Anderson, Helena, argued orally.

Howard C. Gee, Lewistown, Hall, Alexander & Kuenning, Great Falls, for respondent. Howard C. Gee, Lewistown, and Edward C. Alexander, Great Falls, argued orally.

CASTLES, Justice.

This is an appeal from a judgment entered on findings of fact and conclusions of law by the district court, sitting without a jury, in an action wherein the appellants sought recovery of the balance of a down payment allegedly due them upon a contract for the purchase of land, together with interest allegedly due them upon the principal amount of the purchase price of a ranch. Defendants, respondents here, denied performance by plaintiffs, appellants, and sought affirmative relief for the return of their earnest money deposit and expenditures upon a dwelling on the land and for taxes paid, less the reasonable value of their occupation of the premises, and for certain incidental damages arising out of the consumption of the pasture by appellants. The affirmative relief was based upon fraud and deceit in the inducement and failure of appellants to perform as represented.

We are first met with a motion to strike the bill of exceptions. The bill of exceptions was not presented for settlement within the time allowed by law or any valid extension of time. After several sixty-day extensions of time in addition to the time allowed by law to prepare, serve and file a proposed bill of exceptions, on May 15, 1958, the court reporter made her further affidavit for an additional sixty days after May 19, 1958. This sixty-day extension expired on July 18, 1958. On July 14, 1958, the judge presiding 'upon Motion having been made in open court * * * and it appearing to the court that sufficient grounds exist therefor', the plaintiffs were granted fifteen days from and after July 18.

On July 29, 1958, some eleven days after the expiration of the period covered by her affidavit of May 15, the official court reporter made her affidavit to the effect that she would be unable to complete the bill of exceptions until August 15, and requested a further order granting additional time; and upon this affidavit, an order was made on July 31, 1958, extending plaintiffs' time to August 15.

Service was made of the proposed bill on August 11. The defendants objected to any settlement of the proposed bill on the ground that it was not served and filed within the time allowed by law. The formal written objections spelled out the grounds of objection to the effect that the judge presiding in the cause lost all jurisdiction to settle any bill and jurisdiction to further extend the time after July 18, 1958, because the order made on July 14, 1958, was not supported by affidavit as required by statute and is null and void.

Thereafter, the court reporter filed her affidavit disclosing the circumstances surrounding the making of the order of July 14. The affidavit discloses on its face that the district judge had no affidavit, or equivalent, before him when the order was made. Defendant's timely objections were overruled.

On this record the motion to strike the bill of exceptions must be granted.

The applicable statute is section 93-5505, R.C.M.1947, which provides for the initial fifteen days for the preparation and filing of a bill of exceptions and the further sixty days which may be allowed without any showing and then provides to the effect that additional time in excess of sixty days shall not be granted 'except upon affidavit showing the necessity for further time'. Respondents' motion is founded upon the decision of this court in O'Donnell v. City of Butte, 72 Mont. 449, 235 P. 707. At page 452 of the official Montana report, at page 708 of 235 P. this court refers to what is now section 93-5505 and says: 'The language of the section operates as a bar to the extension of time for presentation without the showing by affidavit of necessity for further time. The time allowed by law together with the time which could be granted by the court without the showing by affidavit, in the instant case expired on the 6th day of May, 1924. It was incumbent upon the defendant, in order to have the questions which he submits, reviewed by this court, to file with the clerk of the district court a proposed bill of exceptions on or before the 6th day of May, 1924; this the defendant failed to do. The only alternative was for the defendant to have filed in the cause and presented to the court an affidavit showing the necessity for further time, and in order to show that a bill of exceptions is properly settled--that is, is settled within time--where on the face of the record it appears to have been filed after the time allowed by law, without the showing by affidavit, the bill of exceptions must affirmatively include the showing made.' Emphasis supplied.

That compliance with the statute is jurisdictional is settled in Vicain v. City of Missoula, 107 Mont. 105, 81 P.2d 350. That rule has been repeatedly restated and reaffirmed by this court in Hutchison v. Burton, 126 Mont. 279, 290, 247 P.2d 987, 993, where this court quotes from its former decisions and holds to the effect that a bill of exceptions presented after the expiration of the time prescribed in the statute is a nullity and cannot be considered on an appeal 'even when the objection is not urged, and even though counsel should, by consent or written stipulation filed in the appellate court, agree that it shall be considered'.

The rule was restated in the recent case of Berg v. Fraser, Mont., 349 P.2d 317. And see Matter of Estate of Stephenson (Senzek v. Estate of Stephenson), Mont., 351 P.2d 225.

There are two decisions of this court upon which comment should be made.

The first is Atlantic-Pacific Oil Co. v. Gas Development Co., 105 Mont. 1, 69 P.2d 750. In that case, the order of the court, extending the time beyond sixty days, recited that it was made upon the presentation of the affidavit of one of the attorneys, while the affidavit recited in the court's order was sufficient. That case cannot possibly aid the appellants here for the order of July 14 in this case does not show that the 'sufficient grounds' were shown by an affidavit. Hence, in this case it would first be necessary to presume that there was an affidavit and upon that presumption, further presume that the affidavit was sufficient which is squarely within the prohibition against basing one presumption on another and which was discussed by Mr. Justice Morris in the Atlantic-Pacific case, supra, 105 Mont. at pages 13 and 14, 69 P.2d at page 753 as follows: 'In the O'Donnell Case there was nothing in the record to cause that presumption to arise; in other words, to apply the same rule in the O'Donnell Case, this court would have had first to presume that an affidavit seeking the order had been filed, and then base on that presumption a further inference that it was a sufficient affidavit. Under the familiar rule that a presumption cannot be based upon a presumption, this court arrived at a correct conclusion in the O'Donnell Case'.

There is no room for any presumption here because the affidavit of the court reporter shows that there was in fact no affidavit before Judge Downey on July 14.

The second case which should be noted is Erdmann v. Erdmann, 127 Mont. 252, 261 P.2d 367, where this court refused to strike a bill of exceptions after the appellant had corrected the transcript by adding a copy of the affidavit for extension of time which had been overlooked in preparing the original transcript and bill of exceptions. In other words, it was shown in the Erdmann case that a proper affidavit of necessity had been in fact filed and presented to the court at the time the presiding judge made his order extending time. Marjorie Green's affidavit, noted just above, precludes that escape here. It should be noted that the Erdmann case expressly reaffirms the rule that under section 93-5505, R.C.M.1947, 'the only way that an additional period of time can be extended is by 'affidavit showing the necessity". Erdmann v. Erdmann, 127 Mont. 252, at page 254, 261 P.2d 367, at page 368.

However, even without the bill of exceptions before us, one of the problems upon which this appeal turns is before us. In addition, because this matter had been before this court in various aspects previously (see Fraser v. Clark, 128 Mont. 160, 273 P.2d 105; State ex rel. Clark & Owens v. District Court, 128 Mont. 526, 278 P.2d 1000; State ex rel. Fraser v. District Court, 128 Mont. 625, 283 P.2d 223; Central Montana Stockyards v. Fraser, 133 Mont. 168, 320 P.2d 981), and because the motion to strike the bill of exceptions was argued at the same time as the appeal itself, both appellants' and respondents' briefs discussing the facts and issues as if the bill of exceptions were before us, and the court being completely familiar with the entire record, we are satisfied that no injustice will occur over what may appear to be a technical ruling.

To have a complete understanding of what we consider the issue on this appeal, we shall recite the facts as they appear in the district court's findings.

Plaintiffs and defendants entered into a primary contract on December 30, 1952, wherein it was agreed plaintiffs would sell and deliver to defendants, who agreed to buy, two certain ranches in Fergus County, to wit: the 'Home' or 'Moulton' Ranch and the 'North Pasture', including one-half of all royalties, oil and/or mineral rights in and underlying the same, owned by R. B. Fraser, together with all of plaintiffs' rights to lands allegedly leased by them, and used in connection with the ranches. The...