Minneapolis Threshing Mach. Co. v. Fox

• Decision Date: 19 April 1918
• Docket Number: 3149
• Citation: 52 Utah 101,172 P. 699
• Court: Utah Supreme Court
• Parties: MINNEAPOLIS THRESHING MACH. CO. v. FOX et al

172 P. 699

52 Utah 101

MINNEAPOLIS THRESHING MACH. CO. v. FOX et al

No. 3149

Supreme Court of Utah

April 19, 1918

Appeal from District Court of Salt Lake County, Third District; Hon F. C. Loofbourow, Judge.

Action by the Minneapolis Threshing Machine Company against Jesse W Fox and others.

Judgment for plaintiff. Defendants appeal.

APPEAL DISMISSED.

Ben Johnson for appellant.

Wedgwood Irvine & Thurman for respondents.

FRICK C. J. McCARTY, CORFMAN, and GIDEON, JJ., concur. THURMAN, J., being disqualified, did not participate in the disposition of this appeal.

OPINION

FRICK, C. J.

The defendants have appealed from a judgment entered against them by the district court of Salt Lake County. The plaintiff has interposed a motion to dismiss the appeal. The motion is based on several grounds, but for the reasons hereinafter appearing, we shall consider the first ground only, namely, that the appeal was not taken within the time required by our statute, and for that reason this court is without jurisdiction to hear the appeal.

The record filed in this court shows that the judgment against the defendants was duly entered on January 15, 1916, and that notice of the entry of judgment was served on defendants' counsel the same day; that no motion for a new trial was served and filed until the 31st day of July, 1916, or 6 months and 16 days after the entry of judgment; that the notice of appeal was served and filed June 1, 1917, and the appeal was perfected on the 6th day of that month. The record also shows that the district judge from time to time granted the defendants extensions of time within which to serve and file their motion for a new trial, and that the last extension granted expired on the 31st day of July, 1916, the day on which the motion for a new trial was served and filed.

Plaintiff's counsel insists that, inasmuch as, under our statute (Comp. Laws 1907, section 3301), an appeal may only "be taken within six months from the entry of the judgment," and that section 3329 prohibits the extension of the time within which an appeal may be taken, the serving and filing of a motion for a new trial more than 6 months after the entry of judgment is of no force or effect. The Territorial Supreme Court of Utah in Brough v. Mighell, 6 Utah 317, 23 P. 673, held that the time within which an appeal must be taken cannot be extended, and this court, in Anderson v. Halthusen, etc., Co. , 30 Utah 31, 83 P. 560, held that the time for appeal may not be extended by stipulation. In Felt v. Cook, 31 Utah 299, 87 P. 1092, this court also held that an application to file a motion for a new trial upon the ground of excusable neglect must, under section 3005, be made within 6 months after entry of judgment or it comes too late. Upon the other hand, it has frequently been held by this court, and such has become the settled practice, that the district court or the district judge may grant extensions of time within which to serve and file a motion for a new trial, provided the application for such an extension of time is made before the time provided by Comp. Laws 1907, section 3292, has expired, or, in case further extensions are given, that the new application is made before the time mentioned in the preceding extension has expired. Where such extensions have been granted and the motion for a new trial was regularly served and filed within the time granted, this court has very frequently held that the serving and filing of the motion for a new trial, for the purposes of appeal, prevents the judgment becoming final until the motion for a new trial is denied. In other words, the serving and filing of a motion for a new trial, if done as before stated, suspends the time within which a judgment becomes final for the purposes of appeal. The question now presented, however, namely, whether a motion for a new trial may be served and filed after the 6 months have expired within which a judgment becomes final and the appeal must be taken under section 3301, has never been presented for decision. That, however, is the question we must now decide.

As already pointed out, the time within which an appeal may be taken is jurisdictional, and may not be extended by agreement or otherwise. The only means by which the time within which a judgment becomes final for the purposes of an appeal may be suspended is by serving and filing a motion for a new trial as before stated. The question, therefore, is, when must such a motion be served and filed in order to have the effect of extending the time for appeal? Can that be done within any time that the district court, or a judge thereof, may fix? May the court, or judge, extend...