Hutchison v. Smart
| Decision Date | 30 November 1917 |
| Docket Number | 3089 |
| Court | Utah Supreme Court |
| Parties | HUTCHINSON v. SMART |
Appeal from District Court of Cache County, Second District; Hon. J A. Howell, Judge.
Action by Robert M. Hutchinson against Thomas Smart.
From a judgment for defendant. Plaintiff appeals.
AFFIRMED.
Maughan & Fonnesbeck for appellant.
M. E Wilson for respondent.
At the threshold of this case we are met with a motion by the defendant to dismiss the appeal: (1) Because the transcript on appeal was not filed in time; and (2) because no appeal bond or affidavit of impecuniosity as required by our statute was filed within the time specified in the statute. It was made to appear, however, that the plaintiff had obtained an extension of time from one of the justices of this court within which to file the transcript on appeal, and it was further made to appear that an affidavit of impecuniosity was filed in proper time. The motion to dismiss the appeal must therefore be denied.
The defendant, however, also interposed a motion to strike the bill of exceptions upon the ground that the district court was without jurisdiction to settle and allow the bill for the reason that the statutory time within which bills of exceptions must be settled and allowed by the district courts or judges thereof had expired long before the bill in this case was allowed and signed. The record shows the district court instructed the jury to return a verdict for the defendant, and that judgment was entered on the verdict September 23, 1915. The record further shows that a motion for a new trial was denied on November 13, 1916. Unless the plaintiff obtained an order extending the time within which to prepare and serve his proposed bill of exceptions, therefore, as he was required to do, the time within which he was required to serve his proposed bill of exceptions had expired long before the same was signed by the district judge. Comp. Laws 1907, section 3286. Without an order extending his time plaintiff's time to serve his proposed bill had therefore expired. The record shows that no attempt was made by plaintiff to serve his proposed bill of exceptions until the 24th day of April, 1917, at which time the attorney for the defendant declined to accept service thereof because the same had not been served in time. The district court, however, signed the bill on the 14th day of May, 1917, but did so subject to defendant's counsel's objections. The bill was therefore signed five months after the time specified in section 3286, supra. Plaintiff's counsel, however, contends that he obtained orders from the district judge by which the time to prepare and serve the bill had been extended, and by reason of that fact the bill was in fact settled and signed within proper time. The difficulty with counsel's contention is that the record does not disclose that such orders, or any orders, were made by the district court or judge. Counsel contends that such orders appear in the judgment roll, and, notwithstanding the decision of this court in Dayton v. Free, 46 Utah 277, 148 P. 408, to the contrary, has again strenuously argued that such orders are a part of the judgment roll, and hence need not be authenticated by the district court or judge thereof as constituting a part of the record. It was argued not only in this case, but in one or two other cases at this term, that Comp. Laws 1907, section 3197, makes all orders deemed excepted to a part of the judgment roll, and that in section 3283 orders made on ex parte applications are deemed excepted to. It is therefore contended that orders extending the time within which to settle bills of exceptions are usually made on ex parte applications, and hence are deemed excepted to, and therefore are a part of the judgment roll.
It is also contended that the case of Dayton v Free, supra, should be reconsidered. In making that contention counsel entirely overlooks the language and purpose of section 3197, supra. That section, among other things, provides: "Immediately after entering the judgment the clerk must attach together and file the following papers, which constitute the judgment roll." The section then mentions the papers that shall be so attached and that constitute the judgment roll, among which are "all orders * * * deemed excepted to." By requiring the clerk to attach all papers constituting the judgment roll "immediately after entering the judgment," it is very clear that only such papers, orders, and matters were intended to be made a part of the judgment roll as were then in existence. That is so for the reason that the judgment is deemed to be the last act in the case, and unless the case is appealed it necessarily is the last judicial act in the case. In view, therefore, that it is the...
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