Hoehnan v. New York Dry Goods Co.

• Decision Date: 23 November 1901
• Citation: 67 P. 796,8 Idaho 66
• Parties: HOEHNAN v. NEW YORK DRYGOODS COMPANY
• Court: Idaho Supreme Court

67 P. 796

8 Idaho 66

HOEHNAN v. NEW YORK DRYGOODS COMPANY

Supreme Court of Idaho

November 23, 1901

SETTLEMENT OF STATEMENT-AMENDMENTS TO-WHEN MUST BE FILED. If amendments are proposed to a statement on motion for a new trial, and not adopted by the moving party, subdivision 3 of section 4441 must govern.

SAME-JURISDICTION OF TRIAL COURT.-If objections are made to the settlement of a statement, on the ground that the time for settlement has expired, and such fact appears from the record, the trial court is without jurisdiction to settle the same.

SETTLEMENT OF STATEMENT AFTER TIME IS EXPIRED.-A party may have a statement on motion for a new trial settled after time has expired by showing he is not guilty of laches, or that the neglect is excusable.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Motions sustained, with costs to respondents.

Hawley & Puckett and W. T. Reeves, for Appellants.

Notice of intention to move for a new trial was filed and served March 20, 1901. Time within which to prepare and serve statement on motion for new trial was extended by stipulation until April 16, 1901. Statement was served on attorney for respondent, April 6, 1901. There is nothing in the transcript to show that any amendments were ever proposed to said statement except the inference that might be drawn from the statement of the court and affidavits. But admitting for the sake of argument that amendments were proposed and served service was actually made on the 19th, as of the sixteenth day of April, 1901. The affidavit of W. T. Reeves shows that the amendments were agreed to, in which case, under subdivision 3 of section 4441 of the Revised Statutes of Idaho he was not compelled to file them within any given time, and he had a right to take his time in filing the statement. The transcript itself shows that respondent was responsible for the delay, in that he did not file his objection before the day the statement was to be settled, and there is nothing to show the objections were served upon counsel for appellant. If counsel's contention in this case be sustained, one could agree to the amendments, and thus throw counsel for appellant off his guard, and thereby cause him to let the ten days expire, and then come forward as counsel did in this case, and file objections to its settlement on the day set for that purpose. (Stonesifer v. Kilburn, 94 Cal. 33, 29 P. 332.) The judge, as shown by his order, considered the showing sufficient and settled the statement, which was a matter within his sound discretion, and his ruling in that regard will not be disturbed in this court, unless it clearly appears that the judge was guilty of gross abuse of discretion, which certainly does not appear in this case. (Banta v Siller, 121 Cal. 414, 53 P. 935; Wheeler v. Karnes, 125 Cal. 51, 57 P. 893.) In case of doubt the court should solve the doubt in favor of appellant, so that the full merits of the litigation may be presented. (Buell v. Emerich, 85 Cal. 116, 24 P. 644; Wolff v. Canadian P. Ry. Co., 89 Cal. 322, 26 P. 332; Grady v. Donahoo, 108 Cal. 211, 41 P. 41; Harbaugh v. Honey Lake Val. etc. Co., 109 Cal. 70, 41 P. 792.)

Farrell & Guheen, for Respondents.

It has been universally held in California, where the opposing party has been served with a proposed statement, to which amendments have been proposed and served, that unless the proposed statement and amendments are presented to the judge or the clerk for the judge, within the time allowed by law (ten days) for settlement, the omission is fatal to the settlement of such statement, or to a motion for a new trial, and such statement should be disregarded on appeal. (Henry v. Merguire, 106 Cal. 142, 39 P. 599-601; Wills v. Rhen Kong, 70 Cal. 548, 11 P. 780; Bunnell v. Stockton, 83 Cal. 319, 23 P. 301.) "If the statute absolutely fixes the time within which an act must be done, it is peremptory. The act cannot be one at any other time, unless during the existence of such prescribed time it has been extended by an order of court, made for that purpose, under authority of law." This language was used in the case of Tegambo v. Mining Co., 57 Cal. 503, in relation to the time in which a bill of exceptions might be taken under the statute, and is therefore applicable here. To hold that a statement may be settled when no steps were taken until after the expiration of the ten days, the time for doing so not having been extended, and respondent objecting thereto, would be judicial abrogation of the statutes." (Henry v. Merguire, 106 Cal. 142, 39 P. 600, 601; Connor v. Southern Cal. Mortar Co., 101 Cal. 429, 35 P. 990; Lyndon v. Piper, 5 Idaho 541, 51 P. 101; Steffy v. Elser, 6 Idaho 228, 55 P. 239; Withers v. Kemper, 25 Mont. 432, 65 P. 422; Wheeler v. Karnes, 125 Cal. 51, 57 P. 893; Rev. Stats., sec. 4818.)

STOCKSLAGER, J. Quarles, C. J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, J.

This case is here on appeal from the district court of Bannock county. Two appeals were taken--one from the judgment; the other from the order overruling appellants' motion for a new trial. In the court below, respondents objected to the settlement of the statement on motion for a new trial, alleging that: "It appears from the record and files in the action, and the proposed statement: That judgment was rendered and entered upon a verdict of a jury against the defendants and in favor of the plaintiffs for the sum of twelve hundred and fifty dollars and costs, thirty-four dollars and forty-five cents, on the 12th of March, 1901. That notice of said verdict and judgment was given to defendants in writing, and served upon their attorneys of record, March 14, 1901. On the twentieth day of March, 1901, defendants served and filed their notice of intention to move for a new trial in said cause. That the attorneys for the respective parties on the twenty-sixth day of March, 1901, stipulated that defendants might have twenty days from said date in which to prepare and serve a statement on motion for a new trial or a bill of exceptions in said cause. That on April 6th defendants elected to proceed upon a statement on motion for a new trial, and on said day served upon attorneys for plaintiffs a proposed statement on motion for new trial, as appears from the admissions of service on said proposed statement. On the sixteenth day of April, 1901, plaintiffs prepared and served upon defendants amendments proposed by them to said proposed statement on motion for a new trial, as appears from the admissions of service signed by defendants' counsel, attached to said amendments. Said amendments were not agreed to by defendants' counsel, and said proposed statement and proposed amendments are now offered to this [district] court for settlement." That on the 6th of May, 1901, the attorneys for defendants delivered to the clerk of the court said proposed amendments thereto offered by plaintiffs, for, and to be delivered to, the judge of said court, or to said court, for settlement. That when so delivered to said clerk the time allowed by law for the delivery thereof had expired, and said statement and amendments were and now are functus officio. For the foregoing reasons, said court or judge had no jurisdiction to settle or allow said statement, or to extend the time in which proposed statement and amendments may be delivered to the clerk for the judge or court. The district judge certifies that the dates and times of matters above set forth are true, as shown by the records, and as recited herein, except as modified by the affidavits used in hearing of the within objections. The objections were overruled by the court, and the statement settled and allowed, of date May 17, 1901.

The affidavits referred to by the court are as follows:

"W T. Reeves, being first duly sworn, says that he is the attorney for the defendants, and as such attorney he proposed the statement on motion for a new trial herein; that he delivered same to Terrell & Guheen, attorneys for plaintiffs, on the sixth day of April, 1901; that on or about April 19, 1901, the plaintiffs' attorneys served amendments on me to the proposed statement, and the date of service was fixed the 16th of April, as that was the last day for the service of said amendments; that within ten days after the service of said amendments, affiant met with T. F. Terrell, one of the attorneys for the plaintiffs, and they undertook to settle the statement, and the amendments were then agreed to, and this affiant at once began to engross the said statement, and, as he now believes, did insert said amendments, and, if any were omitted, they were so omitted by oversight or mistake; that immediately after the said amendments were inserted, on the 23d or 24th of April, the statement was resubmitted to Terrell & Guheen for examination, and that on the sixth day of May, 1901, they returned the statement to me; and that affiant immediately filed same with the clerk of the district court for judge of this court."

"Thos F. Terrell, being first duly sworn, deposes and says that he is one of the attorneys for the plaintiffs in the above-entitled cause; that he has read the affidavit of W. T. Reeves upon the objection to the settlement of the proposed statement on motion for a new trial herein, and the same does not state the facts fully or fairly; that the facts relating to the service of the amendments to said statement are as follows: That on the fourteenth day of April, 1901, the said Reeves was leaving the city of Pocatello to be gone for a few days, and, being the only attorney for de...