Nord v. Boston & M. Consol. Copper & Silver Min. Co.
| Decision Date | 10 February 1906 |
| Citation | 84 P. 1116,33 Mont. 464 |
| Parties | NORD v. BOSTON & M. CONSOL. COPPER & SILVER MINING CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Cascade County; J. B. Leslie, Judge.
Action by Nels Nord against the Boston & Montana Consolidated Copper & Silver Mining Company. From a judgment in favor of plaintiff, and an order denying a motion for a new trial defendant appeals. Affirmed.
Ransom Cooper and W. T. Pigott, for appellant.
A. C Gormley and Word & Word, for respondent.
This action was brought to recover damages for personal injury caused by the alleged negligence of the defendant. For the purposes of this decision, a sufficient statement of the case will be found in the opinion delivered by this court on the former appeal. Nord v. Boston & Mont. C. C. & S. M Co., 30 Mont. 48, 75 P. 681. Upon another trial the jury found in favor of the plaintiff. The present appeal is from the judgment rendered upon the verdict, and from an order overruling defendant's motion for a new trial.
Counsel for plaintiff makes the contention that the order denying the motion for a new trial cannot be considered upon the merits for the reason that counsel for defendant failed to make legal, timely, or sufficient service of their statement in support of the motion in the district court, and therefore that the record embodying the matters relied on is not properly before this court. If this contention is sustained, we must, in reviewing the case, confine our discussion to such questions only as arise upon the judgment roll. Counsel for defendant insist that such service as made of the statement was legal, timely, and sufficient, but, if not, that counsel for respondent waived all defects and irregularities in the proceedings, and may not now be heard to object to a review of this appeal on its merits. We shall first notice these contentions. The undisputed facts touching the service and settlement of the statement are the following: The verdict was rendered on June 14, 1904. On the 16th, by stipulation by counsel, the time for the preparation and service of the statement on motion for new trial was extended for 60 days from June 24th. On August 19th, by a like stipulation, the time was again extended for 30 days from August 24th. On September 17th the court, upon good cause shown, further extended the time until October 24th. A. C. Gormley, counsel for plaintiff, was then absent from the county, being engaged in a canvass of the state as a candidate for Congress. He had up to August 15th or 16th had in his employ in his office as stenographer, Frances A. Bennett. At that time she left his employ to enter the office of her father. Her father's office adjoined that of Mr. Gormley, and the two were connected by a doorway. After that date and up to September 28th, when he left the city, whenever Mr. Gormley had any stenographic work to do, he had Miss Bennett do it for him on the "piece plan." On leaving the city Mr. Gormley closed and locked his office and left the key with his wife at the family residence in Great Falls. His residence was known to counsel for appellant. His wife received and attended to his mail. He was not present in the city but once from the time he first left it, until November 5th. In the meantime Miss Bennett had no access to his office. On October 21st Mr. Cooper, one of counsel for defendant, wishing to serve the statement, went to Mr. Gormley's office with it. He found the office closed and locked. Having made inquiry for the whereabouts of Miss Bennett and being told that she was at "the Democratic headquarters," in a building across the street, he went in search of her and found her there. She was at that time regularly employed as stenographer by the Democratic central committee. There is some controversy as to what statement she made to Mr. Cooper, but assuming the latter's statement to be correct, she told him upon inquiry that she was authorized to accept service for Mr. Gormley; at any rate, she did accept service and promised to notify Mr. Gormley, but did not, in fact, do so, because telephone connection could not be had with him. At that time Mr. Cooper told her that he would extend the time, if desirable, in which Mr. Gormley might propose amendments to the statement. On November 4th, and before she had seen Mr. Gormley and without his knowledge, she stipulated with Mr. Cooper, for Mr. Gormley, for an extension of time until November 10th, signing Mr. Gormley's name to the stipulation, and on the same day procured an order to be signed by the district judge, extending the time to November 10th. On November 5th Mr. Gormley was in his office for a short time. He was found there by Mr. Cooper, who desired to know whether Mr. Gormley would repudiate the stipulation made by Miss Bennett in his behalf. At that time Mr. Gormley, as he says, questioned the service of the statement. Mr. Cooper insists that he questioned it only with reference to the time of it, but said nothing as to the authority of Miss Bennett to accept service. The record is somewhat indefinite as to what was said exactly; it is not controverted, however, but that Mr. Gormley stated that he had been too busy in the campaign to think about law business; that "there was question about that service," and that he "would take a little time to think it over before agreeing to anything." Mr. Cooper told him that he could have time to propose amendments if he desired it. On November 9th, Mr. Cooper having concluded, apparently, that Mr. Gormley did not intend to recognize Miss Bennett's stipulation, submitted the statement to the judge for settlement; the paper containing the written submission reciting that "whereas, more than 10 days have elapsed since the service of said proposed statement on motion for a new trial as aforesaid and no amendments having been proposed thereto or served upon counsel for defendant, and the time of the said plaintiff within which to propose amendments to said statement on motion for a new trial having elapsed," etc. In the meantime, on November 7th, Mr. Gormley obtained from the judge time in which to propose amendments "without waiving," as the order recited, "any rights to object to defendant's statement on the ground that the same was not served or filed in time, or for any other reason, the plaintiff reserving any and all rights to object to said statement," etc.
Finally the statement came on for settlement on December 8th. Counsel for plaintiff had in the meantime submitted certain amendments, prefacing them with a statement that he submitted them "without waiving his right to object to the settlement of the defendant's statement on motion for a new trial, on the ground, and for the reason, that no legal, timely, or sufficient service of said statement was made, and plaintiff hereby reserving his right to make any and all objections because of the defendant's failure to serve and file said statement in time, as aforesaid, which rights were reserved to the plaintiff in the court's order extending the time," etc. At the conclusion of the proposed amendments was the following reservation: "The foregoing amendments are proposed with the reservations and objections first above mentioned, and, when the statement and amendments are brought on for settlement, proof will be offered in support of the plaintiff's said objections." Evidence was introduced showing the manner and time of service as above narrated. The court settled the statement "without prejudice to plaintiff's said objections." When the motion came on for hearing, objection to its consideration was made as follows: "Before proceeding with the hearing of the defendant's motion for a new trial, the plaintiff renews the objections heretofore made to any order granting a new trial, and asks that said motion be denied on the ground and for the reason that no legal, timely, or sufficient service *** was ever made *** and plaintiff appears at the hearing *** without waiving any of his said objections." In its order denying the motion, all objections were overruled by the court, but no reason was assigned therefor.
It is said by counsel for plaintiff that the service was not timely, for the reason that the statute authorizing extensions of time in such cases (Code Civ. Proc. § 1897 amended by Laws 1903, p. 38, c. 27), gives no power to the court or judge to grant an extension for a longer time than 90 days without the consent of the adverse party, and that since the order of September 17th was without his consent, service made during the time granted by it was not effectual. There is no merit in this contention. If the parties extend the time by stipulation, the power of the court or judge in the premises is, for the time being, in abeyance. If application be made for an extension before the expiration of the stipulated period, upon good cause shown, such application calls into activity the power vested by the statute, and an extension may be granted without the consent of the adverse party, within the prescribed limit. Spelling, New Trial and...
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