McPherson v. Julius

• Decision Date: 03 June 1903
• Citation: 95 N.W. 428,17 S.D. 98
• Parties: McPHERSON et al. v. JULIUS et al.
• Court: South Dakota Supreme Court

95 N.W. 428

17 S.D. 98

McPHERSON et al. v. JULIUS et al.

Supreme Court of South Dakota

June 3, 1903

Appeal from Circuit Court, Lawrence County.

Action by Donald A. McPherson and others against James Julius and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Frawley & Laffey, for appellants. McLaughlin & McLaughlin, for respondents.

CORSON J.

This is an action to quiet title to a mining claim in Lawrence county. The case was tried to the court without a jury, and the findings and judgment being in favor of the plaintiffs the defendants appealed.

On this case being called for argument, the plaintiffs and respondents moved the court, upon notice previously given, to strike from the record the bill of exceptions settled and allowed by the court on the 31st day of July, 1901, upon the grounds that the same was not signed and settled within the time allowed by law, and no good cause was shown why the same should be settled after the time had expired allowed by law and that the order of the court made May 17, 1901, extending the time and the order settling the bill of exceptions on the 31st day of July, were not in furtherance of justice. It will be necessary to dispose of this motion before proceeding to discuss the case upon the merits.

It appears from the additional abstract that the case was tried in January and February, 1899; that the argument upon the law propositions in the case were made on the 1st and 2d days of March, 1899, and on the 1st day of April the court announced orally its decision for the plaintiffs. About the 24th of June the findings and judgment in the action were signed by the court, and duly entered, and notice of the filing and entering of the same and of the judgment was served upon the attorneys for the defendants. On July 26th notice of intention to move for a new trial was served on the attorneys for the plaintiffs, and notice given that said motion would be based on the bill of exceptions thereafter to be settled. On or about the 25th day of August, 1899, the court, upon application of the defendants' attorneys, made an order extending the time in which to settle the bill of exceptions for 60 days, and this was the last order extending the time made by the court prior to the 13th day of May, 1903 when the defendants procured from the court an order requiring the plaintiffs to show cause why the defendants should not be granted 60 days in which to serve their bill of exceptions, and why they should not have leave to amend their notice of intention by inserting therein "the minutes of the court," instead of "upon the bill of exceptions." The order to show cause was granted upon the affidavits of one of the attorneys for the defendants and the court's stenographer. The reasons for the delay stated by the attorney for the defendants in his affidavit were (1) that the transcript was not finally completed by the stenographer and the last book delivered to the defendants until about the 20th day of October, 1900; (2) that after that time some negotiations for the purchase of mining ground here in controversy were had between the parties to this action, which caused a delay in the application for an extension of time in which to serve the said bill of exceptions. On behalf of the plaintiffs an affidavit was made by one of the attorneys in which it was stated that the transcript had been delivered in sections, commencing with the 25th day of September, 1899, and the last book delivered on or about the 20th day of October, 1900; that the negotiations for the sale of the property took place in February, 1901, and occupied only about three weeks of that month, when all negotiations were at an end; that during the time from the entry of the findings and judgment until the time of the application to the court to fix a time for settling the bill of exceptions on May 13, 1901, the plaintiffs had opened up a large body of ore on the property, and had taken out ore from the same, and had erected a mill on the said property in order to work this ore, at a cost of $32,000. It will be observed that the judgment was entered in June, 1899; that in July the notice of intention to move for a new trial was served, and that on August 25th an extension of 60 days was granted, which expired on October 25, 1899. No further application appears to have been made to the court for an extension of time or any other order in the premises until May 13, 1901, over 18 months after the expiration of the extension of time granted by the court. The only reasons given why an application was not made to the court for a further extension of time after the 25th day of October, 1899, and prior to May 13, 1901, was, as stated by the attorney for the defendants in his affidavit, that he was unable to determine the precise time that would be required by the stenographer in transcribing her notes of the testimony and proceedings in the case, and by reason of the delay caused by the efforts of the parties to settle the action. It will be observed that a period of over six months elapsed after the last book of the transcript was delivered before the application was made to the court for an order extending the time for an additional 60 days, and for leave to amend their notice of intention by substituting the minutes of the court for the bill of exceptions.

It is contended by the plaintiffs and respondents that neither good cause was shown for an extension of the time, nor was the extension of the time in furtherance of justice. They further contended that there was no showing whatever that the defendants took a single step toward preparing a bill of exceptions between the 20th day of October, 1900, when the last book of the transcript was delivered, and the 13th day of May, 1901. Section 5093, Comp. Laws 1887, provides "The court or judge may, upon good cause shown, in furtherance of justice, extend the time within which any of the acts mentioned in sections 5083 and 5090 may be done, or may, after the time limited therefor has expired, fix another time within which any of such acts may be done." In McGillycuddy v. Morris, 7 S. D. 592, 65 N.W. 14, this court, in commenting upon that section, used the following language: "It will be observed that the power or authority to 'fix another time' within which the act may be done is coupled with the condition 'upon good cause shown.' The language is, 'The court or judge may, upon good cause shown, *** fix another time within which any of said acts may be done.' The manifest purpose of the Legislature in the adoption of this section was to place the whole matter of giving notice of the intention to move for new trials and the service and settlement of bills of exceptions within the sound judicial discretion of the trial court; not to its mere arbitrary discretion as to the time within which the several proceedings may be taken. The adoption of that section has, as it was undoubtedly designed that it should do, wrought a radical change in the power of courts and judges over the subject of the time within which the steps leading to a review of cases should be taken. But, as we have said, the power is not an arbitrary one, but is limited to cases where 'good cause is shown' for the omission to do the act within the proper time. The lawmakers have prescribed the time within which bills of exceptions, statements, and notices of intention to move for new trials may be served, and within what time bills of exceptions must be settled, upon a theory that the time so prescribed would be sufficient in ordinary cases; and in adopting section 5093 its manifest intention was to prevent a failure of justice, by authorizing the court or judge to enlarge the time, for good cause shown, and to 'fix another time' in which an act may be done after the time had expired, when 'good cause' should be shown therefor. The exercise of the power being dependent upon 'good cause shown,' there must be cause shown excusing the failure to do the act within the prescribed or enlarged time before the court can legally 'fix another time' for the performance of the act. It may not be essential that a formal order be made 'fixing another time' within which the act may be done, but there must be some showing excusing the omission to do the act within the proper time. This seems to be the view of the Supreme Court of North Dakota, where the section we are now considering was in force. In Moe v. Railroad Co. [ N. D.] 50 N.W. 715, Judge Wallin, who wrote the opinion in Johnson v. Railroad Co. [ (N. D.) 48 N.W. 227], in commenting upon the latter case, after quoting from that opinion, says: 'This holding imports--and such is our present view of the law--that the district court, under the statute, has been vested with authority in these cases to extend time and fix new time when the statute's limit has run, but that such authority can be lawfully exercised only upon the condition set out in the statute; i. e., upon good cause shown."' That learned court, in its opinion, further says: "The discretion to extend time is not absolute in the district court; and when such discretion is not, in our judgment, a sound judicial discretion, we shall not hesitate to review, and, when necessary, reverse, the same. Welch v. County Court (W. Va.) 1 S. E. 337. The policy of the law demands that the utmost diligence should be exercised in taking the prescribed action necessary to a review of alleged errors made in the trial court. Looking towards prompt action, the Legislature has specially limited the time within which the necessary steps preliminary to a review must be taken. The statutory time limited for giving notice of intention and for having bills of exception and statements settled is ordinarily ample for the purpose. It...