Jenkins v. Stephens

• Decision Date: 09 September 1924
• Docket Number: 4089
• Citation: 64 Utah 307,231 P. 112
• Court: Utah Supreme Court
• Parties: JENKINS v. STEPHENS

231 P. 112

64 Utah 307

JENKINS v. STEPHENS

No. 4089

Supreme Court of Utah

September 9, 1924

Rehearing Denied October 27, 1924.

Appeal from District Court, Second District, Weber County; Geo. S Barker, Judge.

Action by W. L. Jenkins against Lottie M. Stephens. Judgment for plaintiff, and defendant appeals.

REVERSED, and new trial granted.

N. J Harris, of Ogden, for appellant.

Halverson & Pratt, of Ogden, for respondent.

GIDEON J. FRICK, J., dissenting.

OPINION

GIDEON, J.

In this action plaintiff (respondent) seeks judgment against the defendant (appellant) for the wrongful construction of a dam or dike across a water course near the east line of the appellant's property and immediately west of the respondent's property. The construction of the dam, it is alleged, caused water to flood respondent's lands to his damage. Respondent had judgment. Defendant appeals.

After the appeal had been perfected in this court and the record filed here, the respondent filed a motion to strike the bill of exceptions upon the ground that the proposed bill had not been served within the time fixed by statute. Typewritten briefs were submitted and the court, after consideration, denied the motion. The minute entry denying the motion is as follows:

"In this cause it is ordered that the motion to strike the bill of exceptions be denied; the reasons for the denial of the motion to be stated in the opinion to be filed on the hearing of said cause on merits."

The appellant thereafter prepared and had printed an abstract of the record as well as printed briefs. The motion has been reargued in these briefs. We shall therefore consider that question before entering upon a discussion of the merits.

It appears from the record that the verdict of the jury was rendered September 29, 1922; that the appellant's motion for a new trial was denied December 30, 1922. Appellant's notice of appeal was served and filed on June 30, 1923. The bill of exceptions as settled by the court was served on counsel for respondent on November 20, 1923. No notice of the overruling of appellant's motion for new trial was ever served. No orders were made by the court extending the time for preparing and serving the proposed bill of exceptions. Section 6969, Comp. Laws Utah 1917, provides that a party litigant desiring to have exceptions taken at the trial settled in a bill may, within 30 days after service of notice of the entry of judgment if the action be tried without a jury, or after service of notice of determination of motion for a new trial, prepare a draft of the proposed bill and serve the same, or a copy, upon the adverse party.

In section 7024 of the same compilation, in the chapter headed "Notices, and Filing and Service of Papers," it is provided that all notices must be in writing.

After serving the notice of appeal, orders were made by this court, based upon stipulation of counsel, extending the time to file the record on appeal with the clerk of this court.

It is the contention of counsel for respondent that the giving of the notice of appeal is a waiver of notice of the order overruling the motion for a new trial, and for that reason the district court lost jurisdiction to settle the bill of exceptions. The bill was not served within 30 days after the notice of appeal had been served and filed.

On the other hand, it is claimed by appellant that the time for settling the bill of exceptions did not begin to run until written notice had been served of the overruling of the motion for new trial, and that therefore the court retained jurisdiction to settle the bill. It will be convenient to first consider the arguments of appellant in opposition to the motion.

Reliance is had upon the former opinions of this court. In an early case, Burlock v. Shupe, 5 Utah 428, 17 P. 19, the court had occasion to consider a similar question to the one here presented. The contention there was that the trial court had no authority to entertain the defendant's motion for a new trial for the reason that it was not filed in the time allowed by statute. The statute then in force provided that--

"The party intending to move for a new trial, must, within ten days after the verdict of the jury * * * or after notice of the decision of the court or referee, * * * file with the clerk, and serve upon the adverse party, a notice of his intention."

The gist of the court's opinion is indicated by the first headnote, as follows:

"Where, after a decision rendered by the court, a party against whom the decision was made applies for time in which to give notice of his intention to move for new trial, such application is not such a waiver of the notice of decision required by section 536 of the Code of Civil Procedure, as to cause the time for giving notice of intention to move for new trial to begin to run."

In the course of the opinion the court said:

"It does not seem that the provision of the statute that the time to give the notice of the intention begins to run from the time of the notice of the decision, and that notices must be in writing, could be held to mean that mere knowledge is notice. Where the party has knowledge, and acts in the manner pointed out in the statute as to follow the notice, there would be good reason to treat his action as a waiver of the notice, or as equivalent to the notice. But we are not prepared to say that anything short of doing something which the statute points out as to follow or be preceded by the notice, would be or could be treated as a waiver of the notice. The party must do some affirmative act pointed out in the statute as not necessary to be done until after the notice."

That opinion follows the opinion of the Supreme Court of California in Biagi v. Howes, 66 Cal. 469, 6 P. 100. The rule laid down in these cases has been adhered to in two later decisions of this court. The California court, in Biagi v. Howes, supra, said:

"This is much the best rule. It is more certain and definite, prevents controversies which, under any other construction, would be likely to arise, and above all accords in our opinion with the intention of those enacting the statute."

The authority of Burlock v. Shupe was recognized by this court in Mercantile Co. v. Glenn, 6 Utah 139, 21 P. 500, and Everett v. Jones, 32 Utah 489, 91 P. 360. In the Everett Case the language of the Burlock Case that "the party must do some affirmative act pointed out in the statute as not necessary to be done until after the notice" is recognized as the settled practice in this state under a statute such as the one now under consideration.

The Superior Court of New York, in Fry v. Bennett, a case reported in 16 How. Prac. 402, in discussing a provision of the act of procedure requiring written notice, says:

"First, to make the condition of the limitation so plain that there should be no danger of misconstruction or misapprehension. And, second, to place it in the power of the prevailing party to set the time running within which an appeal shall be taken, whenever he may choose. By this means each party is placed in a situation to know distinctly and clearly what is the actual state of the controversy in this respect. The losing party will not be taken unawares and be deprived of a right of review, and the prevailing party will know precisely when the right of review is waived or lost."

Reliance is had by respondent upon certain language found in the decision of this court in State ex rel. v. District Court, 38 Utah 138, 110 P. 981, Ann. Cas. 1913B, 437; but that opinion does not overrule or attempt to overrule Burlock v. Shupe, supra, or Everett v. Jones, supra. On the contrary, the decision in that case refers to the former two cases as supporting the conclusion reached.

It was within the power of the respondent at any time after December 30, 1922, by serving notice, to start the running of the time within which the bill of exceptions could be settled by the trial court. The giving of the notice of appeal is not contingent upon any notice of the decision. The time for appeal cannot be extended, and the time expires six months after the judgment becomes final, whether any notice of entry of judgment or of the ruling on the motion for new trial is served or not. Minneapolis Threshing Mach. Co. v. Fox et al., 52 Utah 101, 172 P. 699. The taking of the appeal, therefore, cannot be said to be an act or conduct on the part of the appellant which was not required or necessary to be done until after service of the notice of the overruling the motion for new trial. At most, it is only a matter of procedure, and the procedure having been stated and accepted by the bar of the state as announced in the foregoing cases, no good reason appears why the rule should be changed, especially in view of the fact that the successful party always has it in his power to start the running of the statute. The rule tends to regularity; it does not present doubtful questions as to whether this or that act could be considered a waiver, and deprives no one of any substantial right. Tested by the decisions of this court announced in 5 Utah 428, 17 P. 19, and subsequent cases founded upon the earlier rulings of the Supreme Court of California and the Superior Court of New York, we are clearly of the opinion that the order of the court, in the preliminary stages of this appeal, denying the motion to strike the bill of exceptions, should be adhered to.

Passing now to the merits.

Appellant discusses at some length the weight of the evidence. It ought not to be necessary to repeat that this court, in law cases is not permitted under the Constitution or statutes to weigh evidence. If there is any substantial competent evidence in the record to support the court's findings...