Lydon v. Piper

• Decision Date: 27 November 1897
• Citation: 5 Idaho 541,51 P. 101
• Parties: LYDON v. PIPER, JUDGE
• Court: Idaho Supreme Court

51 P. 101

5 Idaho 541

LYDON v. PIPER, JUDGE

Supreme Court of Idaho

November 27, 1897

STRIKING OUT BILL OF EXCEPTIONS.-The action of the trial court in striking from the files a bill of exceptions which was proposed and served after the time allowed by law, and after the time stipulated by the parties in which exceptions taken at the trial might be incorporated into a bill of exceptions and which bill of exceptions was settled by the trial judge the day it was proposed and served, affirmed.

STIPULATIONS AS TO SERVICE OF BILL OF EXCEPTIONS.-When parties by stipulation agree that either party have "sixty days after the rendition of the decision" in which to prepare and serve a bill of exceptions, such stipulation is a waiver by both parties of notice of rendition of the judgment, and the bill of exceptions must be proposed and served within sixty days from the date of entering judgment, unless the time therefor be properly extended.

BILL OF EXCEPTIONS, WHEN IMPROPERLY SETTLED.-The trial court can properly make an order striking from the files a bill of exceptions improperly settled, for the reason that it was proposed and served after the time in which such bill of exceptions could be legally proposed and served had expired on a proper application made prior to filing transcript on appeal in the appellate court.

(Syllabus by the court.)

Original proceeding by writ of review.

Affirmed, with costs.

S. S. Denning and Warren Truitt, for Petitioner.

The court's action was without jurisdiction. After the appeal was taken and perfected the court had lost all jurisdiction. That even though the matters stated in the affidavit upon which the motion is based were true, they ought to have been raised in this court upon the appeal, and not by motion in the lower court after the appeal was perfected. The defendant Lydon after judgment had the right to substitute other attorneys without further notice under the statutes of Idaho. Under the stipulation entered into in the case, the exceptions were taken, settled and allowed without any further action between the respective attorneys in the case, except the mere signing and certificate granted by the judge as to their being correct. Certiorari is the proper remedy. (Bryan v. Berry, 8 Cal. 130; Thorton v. Mahoney (1864), 54 Cal. 569; Mulford v. Estudillo (1867), 32 Cal. 131; McGarrahan v. Mining Co. (1874), 49 Cal. 331.) After an appeal has been taken the court below has no authority to make new or further findings. (Baggs v. Smith (1878), 53 Cal. 88; Younger v. Pagles (1882), 60 Cal. 517.) The practice followed in California has always been that where the question of want of notice of the substitution of the new attorney has come in question, it has always been raised in the supreme court, even though the objection was raised on the motion for new trial or any other stage prior to the appeal, or though it was upon the appeal that the new attorney has been substituted for the first time. (Grant v. White (1856), 6 Cal. 56; Prescott v. Salthouse (1878), 53 Cal. 221; McDonald v. McConkey, 54 Cal. 143; Whittle v. Renner (1880), 55 Cal. 395; Jones v. Spears (1880), 56 Cal. 163; Livermore v. Webb (1880), 56 Cal. 189.)

James W. Reid, for Respondent.

There was no notice of a change or substitution of attorneys as required by law. The time had expired for serving or settling bill of exceptions on July 24, 1897, and was never extended. (Idaho Rev. Stats., secs. 3999, 4000.) When the attention of the judge was called to the fact that he had erroneously signed and settled a bill of exceptions, it was his duty to strike it from the files, regardless of the appeal. The motion supported by the affidavit setting forth all the facts presented the error. (Fleary v. Cattle, 47 Cal. 527; Brigner v. Chevalier, 9 Cal. 351; Reay v. Butler, 69 Cal. 572, 11 P. 463, 468; James v. Leport, 19 Nev. 174, 8 P. 47.)

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

This proceeding was commenced in this court to review an order made by the district court of the second judicial district, in and for Nez Perces county, striking from the files, in the case of Joe Broncheau et ux. against Harry Lydon, in said district court, a bill of exceptions presented by the said defendant, and settled by the judge of said district court. To the writ of certiorari heretofore issued, the said district judge has made return, and caused the proceedings below to be duly certified to this court, wherein it is made to appear as follows: The defendants here, Joe Broncheau and wife, as plaintiffs below, brought their suit to recover damages alleged to have been sustained by them by the wrongful seizure and conversion of a quantity of wheat alleged to have been converted by the defendant below. The cause was tried by the court, without a jury, on the eighth day of May, 1897, and findings of fact and judgment were filed in the cause on the twenty-fourth day of May, 1897. On the trial the parties entered into the following stipulation, to wit: "It is hereby stipulated and agreed by and between the respective parties hereto that they and each of them shall have sixty days after the rendition of the decision herein within which to prepare and serve a bill of exceptions and statement of case on motion for a new trial, or either or both, and to present the same to the court for settlement and allowance. It is further stipulated and agreed that all exceptions taken during the progress of this cause shall have the same force and effect as if the same were written out and settled and allowed at the time of taking." On August 13, 1897, S. S....