Hurd v. Ford

• Decision Date: 09 April 1929
• Docket Number: 4737
• Citation: 74 Utah 46,276 P. 908
• Court: Utah Supreme Court
• Parties: HURD et al. v. FORD

276 P. 908

74 Utah 46

HURD et al. v. FORD

No. 4737

Supreme Court of Utah

April 9, 1929

Appeal from District Court, Third District, Salt Lake County; Chris Mathison, Judge.

Action by J. H. Hurd and others, doing business under the firm name and style of Hurd & Hurd, against Mary Nowlin Ford. From a default judgment for plaintiff, defendant appeals.

Judgment set aside, and cause remanded.

W. A Hilton, of Salt Lake City, for appellant.

P. T Farnsworth and Hurd & Hurd, all of Salt Lake City, for respondents.

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

OPINION

FOLLAND, J.

This is an appeal by defendant from a default judgment rendered against her.

Plaintiffs brought the action to recover attorneys' fees for legal services rendered and performed for defendant in a certain will contest in the district court of Salt Lake county and on appeal in the Supreme Court of the state of Utah of an alleged certain reasonable value. In view of the questions of practice raised on this appeal, it is necessary to set out the dates, all in the year 1928, when the various papers were filed and orders made.

Summons was served on defendant January 31st. Complaint was filed February 10th. Within the time to plead, and on February 20th, defendant served and filed the following paper:

"Motion to Make Definite and to Furnish a Bill of Particulars.

"Comes now the defendant, Mary Nowlin Ford, and by her attorney, Arthur A Platz, moves the court in the above entitled cause, to require the plaintiffs to make their complaint definite and certain, by stating the particulars of the items of services alleged in the complaint to have been rendered, for the reason that said information is necessary to enable the defendant to properly prepare her defense to the alleged action."

On the next day, February 21st, plaintiffs served and filed an itemized account of services or bill of particulars, and on the same day the court, on motion of plaintiffs' attorney, entered default of defendant, and, without the taking of any testimony or the introduction of any evidence, entered judgment for the amount prayed for in plaintiffs' complaint. On March 3d defendant served and filed a motion to vacate and set aside such default judgment and permit her to file an answer and have a trial on the merits. The motion stated several grounds, including mistake, surprise, excusable neglect, and that default was irregular, erroneous, void, and contrary to Comp. Laws Utah 1917, § 6844. Affidavits were filed both in support of and in reply to the motion. Plaintiffs also filed a demurrer. Hearing was had upon the motion to vacate and set aside the judgment, and on March 10th the court made an order, the minute entry of which, excluding formal recitals, reads as follows:

"* * * It is ordered that upon the condition that the defendant deliver the notes and mortgages mentioned in the counter-affidavit of E. D. Hurd, filed herein, to the Sheriff of Salt Lake County, Utah, within five days from date, then the defendant will have ten days thereafter in which to answer. It is further ordered that the case be tried on its merits, meanwhile the judgment to stand until the final determination of the cause, to which the defendant's attorney excepts."

Defendant changed attorneys, and, on March 10th the newly employed attorney filed a motion wherein he sought to vacate the order requiring the deposit of securities with the sheriff, and also a further motion to set aside the default judgment and vacate same. The demurrer and answer of defendant were served upon plaintiffs and filed with the clerk on March 20th, which was within the time specified by the order of the court. A hearing was had on the second motion March 23d and the motion denied, but defendant given until March 26th within which to deliver the mentioned securities to the sheriff. Defendant refused to deliver the securities, but, on March 28th, served notice of appeal and filed undertaking on appeal.

Up to this time no bill of exceptions had been prepared, served, or filed. On April 9th, the court extended the time within which to prepare, serve, and settle the bill of exceptions to and including May 9th, and again, on May 9th extended the time to and including May 30th. A bill of exceptions was prepared and served upon plaintiffs' attorney, who receipted for the same April 30th, "expressly reserving all objections and exceptions thereto and settlement thereof." The bill of exceptions was settled by the court and filed May 12, 1928.

Respondents have moved this court to strike the bill of exceptions from the record and files for the reason that the same was not served, settled, or filed, within the time allowed by law or by any order of court. No notice of entry of judgment was served upon appellant, but respondents urge that such notice was waived when appellant took cognizance of the judgment by moving to set aside and vacate the same, and that her time within which to prepare, serve, settle, and file a bill of exceptions commenced to run from the date of her motion, which was filed March 3d. The question of waiver is discussed in the briefs of both parties. Many authorities are cited in the briefs. We, however, feel that there is no need to either discuss or decide the question of waiver, since we think the question of timeliness of settlement of bill of exception is decided by the express language of our statute, Comp. Laws Utah 1917, § 6969, as amended by chapter 51, Laws Utah 1925. That part of this section applicable here is as follows:

"When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within thirty days after the entry of judgment if the action were tried with a jury, or after service of notice of the entry of judgment if the action were tried without a jury, or after service of notice of the determination of a motion for a new trial, or in case an appeal is taken before the bill of exceptions is settled service of the notice aforesaid shall not be necessary and the appellant shall, within thirty days after service of his notice, of appeal, prepare a draft of a bill and serve the same, or a copy thereof, upon the adverse party." (Italics supplied is that part of the section added by the 1925 amendment.)

Respondents did not serve notice of entry of judgment upon appellant. An appeal was taken before the bill of exceptions was settled. Therefore appellant had thirty days from the date of service of notice of appeal within which to prepare, serve, and file her bill of exceptions. Within this 30-day period appellant applied for and received from the court an order extending her time within which to settle the bill. The bill of exceptions was served, filed, and settled within the extended time. Such extension of time is permitted under the provisions of Comp. Laws Utah 1917, § 7023. It is also well settled in this state that a district court may, after appeal, settle a bill of exceptions where proper steps are taken to preserve its jurisdiction. Wilson v. Salt Lake City, 52 Utah 506, 518, 174 P. 847, 851; Jenkins v. Stephens, 64 Utah 307, 231 P. 112.

Respondents have moved this court to dismiss the appeal on the ground that the abstract of record and assignments of error filed herein do not comply with the rules of this court requiring a reference to pages of the transcript. Appellant, at the time of the oral argument, asked and obtained leave of this court to make necessary corrections to comply with the rule. This court will, in certain cases, dismiss an appeal for failure to comply with the rules in this respect. First National Bank v. Smoot (Utah) 269 P. 518. Here, however, the record is short and susceptible of correction. The motion is therefore denied.

The judgment of the lower court is attacked by appellant on the ground that default was entered prematurely, she urging that her motion to make definite and furnish a bill of particulars, served and filed February 20th, was such a motion as, under the provisions of Comp. Laws Utah 1917 § 6844, would prevent the taking of default until after it had been disposed of. In view of the fact that a bill of particulars, under our statute, may be demanded without a motion, and further in view that the motion referred to was not in form or substance in compliance with the statute with respect to demurrers, some question has arisen as to just what office this motion performed. Appellant contends that whether it be regarded as in effect a special demurrer, or a motion to make specific, or a demand for a bill of particulars, still it was such a motion as comes within the provisions of section 6844, supra, and was sufficient to prevent the entering of default. On the other hand, respondents contend that the motion in question was not such a motion as is recognized by law, and therefore did not, of itself, operate to extend time; that it was not a special demurrer, in that it did not point out the particulars wherein it was claimed the complaint is uncertain, and, if treated as a demand for a bill of particulars, it nevertheless would not operate to extend time. We are disposed to treat the motion as one demanding a bill of particulars. Butler v. Robinson, 76 Cal.App. 223, 244 P. 162. Respondents recognized it as such, and immediately served and filed a bill of particulars. The rule with regard to what operates as an extension of time is stated in 31 Cyc. under the title "Pleading," at page 134, as follows: "* * * Where oyer is demanded and given the party has the same time in which to plead thereafter as he had at the time of the demand, the time elapsing between the demand and the giving not being counted as a part of the time allowed for pleading, and the same is...