Jeremy Fuel & Grain Co. v. Denver & R.G.R. Co.

• Decision Date: 29 December 1921
• Docket Number: 3672
• Citation: 59 Utah 266,203 P. 863
• Parties: JEREMY FUEL & GRAIN CO. v. DENVER & R. G. R. CO
• Court: Utah Supreme Court

203 P. 863

59 Utah 266

JEREMY FUEL & GRAIN CO. v. DENVER & R. G. R. CO

No. 3672

Supreme Court of Utah

December 29, 1921

Appeal from District Court, Third District, Salt Lake County; John F. Tobin, Judge.

Action by the Jeremy Fuel & Grain Company against the Denver & Rio Grande Railroad Company. Judgment for the plaintiff, and defendant appeals. On respondent's motion to strike the bill of exceptions.

MOTION DENIED.

Van Cott, Riter & Farnsworth, of Salt Lake City, for appellant.

Ball Musser & Robertson, of Salt Lake City, for appellees.

FRICK J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ concur.

OPINION

FRICK, J.

Respondent has filed a motion to strike the bill of exceptions upon various grounds. The grounds that are material here are (1) that the district court was without jurisdiction to allow and settle the bill of exceptions, for the reasons hereinafter stated, and (2) that it is not made to appear from the bill of exceptions that the district court allowed and settled it within the time authorized by our statute.

We desire to state at the outset that in this case we have departed from the general rule of procedure in this court. Usually, where a motion to strike a bill of exceptions or to dismiss an appeal is interposed, and where the question whether the motion should prevail or not is doubtful, the motion must be presented at the time the cause is set for hearing upon the merits, and the motion will be considered and determined with the merits. For the reason, however, that this case involves several questions of practice as to which it is important to both bench and bar that they be settled, and in order to save respondent the expense of preparing and filing its briefs upon the merits should the motion be decided in its favor, and, further, in view that we have been compelled to devote much time and labor to determine all the questions involved, it will result in the saving of time and further labor to dispose of the motion at this time rather than to wait until the case is heard and submitted upon the merits.

We desire to have it understood, however, that the procedure in this case is not to be taken as a precedent, and the general rule before stated will be adhered to and followed, unless for special reasons this court will proceed otherwise.

The facts upon which the motion rests, briefly stated, are: That the case was tried to a jury and a verdict in favor of plaintiff was returned on November 26, 1920. Judgment, however, was not entered on the verdict until December 7, 1920. No motion for a new trial was made by either party. On March 25, 1921, the defendant, appellant here, duly served its proposed bill of exceptions upon the respondent, which was settled and allowed, according to the certificate of the judge who tried the case, on April 8, 1921.

Under our statute (Comp. Laws Utah 1917, § 6969), in a case like the one at bar, a party to an action who desires to have a bill of exceptions settled and allowed must prepare and serve the same upon his adversary "within 30 days after the entry of judgment." The judgment having been entered on December 7, 1920, and the bill of exceptions not having been served until March 25, 1921, the service as made was clearly not within the terms of the statute.

Under our statute the district court, or the judge, may, however, for good cause shown, grant an extension of time within which to serve, settle, and allow bills of exceptions, if such extensions are timely applied for and made.

In this case appellant resists the motion to strike upon the ground that it obtained proper and timely extensions of time within which to prepare, serve, and file its bill of exceptions, and that for that reason the motion should fail. Respondent, upon the other hand, insists (a) that under the settled practice of the court it must be made to appear from the bill of exceptions itself that it was settled within the statutory time or within valid extensions, and (b) that those facts do not affirmatively appear from the record in this case and hence the motion should prevail.

The original orders granting extensions of time, which appellant avers were made by the district judge, are not set forth in the bill of exceptions and are not made a part of the record in such manner as permits us to inspect or to consider those original orders. The record, however, affirmatively shows that orders or extensions of time to serve and file a bill of exceptions were made. That fact is, however, made to appear in the following manner only. In the bill of exceptions, and preceding the certificate of the judge allowing it, appears the following statement:

"The foregoing, with the exhibits which will be later attached and made a part hereof as below stated, contains all of the evidence adduced at the trial of this cause and correctly shows the various proceedings therein. Before the expiration of the statutory period of 30 days from the rendition of the verdict to prepare and serve a bill of exceptions, the court duly entered an order extending the time to and including February 1, 1921. On January 31, 1921, the court again duly entered an order extending the time to and including March 1, 1921; and on March 1, 1921, the court again duly entered an order extending the time to March 20, 1921; and on March 21, 1921 (March 20, 1921 falling on Sunday), the court again duly entered an order extending the time to and including March 28, 1921."

That statement is followed by another one in these words:

"And now within the time allowed by law and the order of this court the defendant serves on the plaintiff the foregoing as its proposed bill of exceptions in this cause."

These statements are followed by the certificate of the trial judge, which we here insert in full:

"The foregoing bill of exceptions, together with the exhibits and the various affidavits therein mentioned and hereto attached, and made a part hereof, contains all of the evidence adduced on the trial of this cause and correctly shows the various proceedings during the trial as well as subsequent thereto. The same being true and correct, it is accordingly settled and allowed as a true bill of exceptions in this cause."

The respondent vigorously contends that, although all parties are bound by the foregoing statements as being correct, yet the same are insufficient to show that the district judge had jurisdiction to settle and allow the bill of exceptions, for the reason that it does not appear therefrom that it was served, settled, and allowed within the statutory time or within legal extensions of such time.

In support of this contention respondent insists (1) that the statements in the bill of exceptions relating to the orders of the judge extending the time are inherently insufficient to show that proper and timely extensions were made, and (2) that the facts cannot be made to appear in that way, since the orders as made must themselves be made a part of the bill of exceptions. Counsel for respondent, in support of their contention, cite and rely upon a statement contained in the case of Hutchison v. Smart, 51 Utah 172, 169 P. 166. In that case a motion to strike the bill of exceptions was interposed upon the same grounds that are urged in the case at bar. It was there contended, as it is here, that, although the orders extending time were not made a part of the bill of exceptions, it was, nevertheless, sufficiently made to appear from the judge's certificate that the time for serving the bill of exceptions had been properly extended. The writer who wrote the opinion in that case, in the course of the opinion, said:

"It is, however, contended that it is sufficient if it appear from the judge's certificate attached to the bill of exceptions that the time for serving and settling the bill had been extended. If that were conceded, yet there is nothing in the judge's certificate indicating that such orders had been timely made. In that connection it is only just to state, however, that the better practice is to attach the orders themselves to the proposed bill so that the adverse party may be advised when and by whom the orders, if any, were made. An order granted out of time is just as fatal to the jurisdiction of the court or judge as though no order were made at all."

A mere cursory reading of the statement contained in that opinion clearly shows that it was not intended by what is there said to lay down a hard and fast rule that the fact that timely and proper orders extending the time within which to prepare, serve, and file a bill of exceptions can only be shown or made evident by producing and making the original orders an integral part of the bill of exceptions. As there stated, although it had been conceded that the judge's certificate showed that certain orders extending time were made, yet nothing was made to appear that such orders were timely made. It is just as essential to show that such orders were made timely as it is to show that they were made at all. The essential fact was there not made to appear, and hence what is there said is not decisive of this case.

We desire to add here that, if appellant in this case had heeded what is there said would be the "better practice," it would not only have saved itself much expense but it would have relieved this court of much unnecessary labor. This case therefore merely emphasizes the soundness of the suggestion there made. Nor is there anything to the contrary in the case of Ukon Water Co. v. Rooker, 56 Utah 294, 190 P. 778.

It does not follow, however, that because it would be the better and safer practice to attach to bills of exceptions the original orders extending time and make them a part thereof that is the only way in which the facts in...