Miller v. Hunt

• Decision Date: 09 February 1901
• Citation: 63 P. 803,7 Idaho 486
• Parties: MILLER v. HUNT
• Court: Idaho Supreme Court

63 P. 803

7 Idaho 486

MILLER v. HUNT

Supreme Court of Idaho

February 9, 1901

SETTLEMENT OF STATEMENT-TIME IN WHICH STATEMENT MAY BE SETTLED WHERE NO AMENDMENTS ARE PROPOSED.-When a proposed statement, on motion for a new trial, is served on the adverse party within the statutory time, and no amendments thereto are proposed by the adverse party, the statement as proposed may be presented to the judge or delivered to the clerk for settlement within any reasonable time thereafter. Under such circumstances subdivision 3 of section 4441 of the Revised Statutes does not limit the time within which to present the statement for settlement

(Syllabus by the court.)

APPEAL from District Court, Idaho County.

Reversed and remanded.

James De Haven and McDuffie & Griffith, for Appellant.

The order refusing to settle the statement was made after final judgment, and is therefore appealable. (Calderwood v Peyser, 42 Cal. 111; Clark v. Crane, 57 Cal 630; Hayne on New Trial and Appeal, sec. 146.) Where no amendments are served, or if served are adopted, subdivision 3 of section 4441 does not limit the time within which to present the statement for settlement. (Pendergrass v Cross, 73 Cal. 475, 15 P. 63; Houghton v. Superior Court, 128 Cal. 352, 60 P. 973.) The course followed by the learned judge in this case was vigorously condemned by Justice Sanderson in the case of Quivy v. Gambert, 32 Cal. 309.

George W. Goode, for Respondent.

There is in the transcript no sufficient identification of the papers used. (Miller v. Baie, 56 Cal. 135; Nash v. Harris, 57 Cal. 242; Strathern v. Daken, 63 Cal. 478; Walsh v. Hutchings, 60 Cal. 228.) An order refusing to settle a statement is not an appealable order under our practice. Now, what is the practice in this state? Presumably, up to 1893 it followed that of California, but in 1893 this court revised and amended its rules, and among these rules we find rule 12, which was not heretofore one of the rules of the court. That rule provides: "If any judge . . . . neglects or refuses to settle and allow a bill of exceptions or statement in accordance with the facts within thirty days after the same is fully submitted to him, the party aggrieved may apply by petition to this court or one of the judges thereof to approve the same." This rule completely supersedes the California practice, and undoubtedly so intended, and in the language of defendant's counsel in his brief in this case: "The rule was wisely adopted, as we think, to save litigants from the uncertainty that has prevailed in the state of California, and is a beneficent one." (Aultman, Taylor & Co. v. Wilcox.)

STOCKSLAGER, J. Quarles, C. J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, J.

This is an appeal from two orders made after final judgment, one refusing to settle a statement on motion for new trial, and the other refusing to relieve the appellant from said order refusing to settle said statement. The following facts appear from the record: The said cause was tried by a jury on the twenty-third day of May, 1900, and a verdict was returned against the defendant. On the second day of June, 1900, a notice of intention to move for a new trial was filed with the clerk and served on the plaintiff, and on the eleventh day of June, 1900, a statement on motion for a new trial was served on the plaintiff, and no amendments were ever proposed. On the tenth day of October, 1900, the defendant served notice that he would move the court to settle said statement. This motion was taken up, by consent of the parties, on the twelfth day of October, 1900; also an objection to the settlement of said statement, filed on behalf of the plaintiff, which said statement and objection were taken under advisement. On the sixteenth day of October 1900, the judge of said court filed the following order: "At this time plaintiff, by counsel, filed objections to said statement being settled, and, after hearing the argument of counsel, I find that the defendant has been guilty of negligence and laches in not having presented said statement to the clerk of said court, or the judge thereof, within a reasonable time after the service thereof, and that there is no excuse offered or claimed for such neglect. Therefore the objections of plaintiff are hereby sustained, and the settlements of said statement disallowed." The affidavit of counsel for defendant filed November 5, 1900, among other things, says that there was no term of court in Idaho county between the 11th of June (the day on which he served statement on plaintiff) and the eighth day of October, 1900, and that the district judge was not in said county,...