Parker v. Bamberger

• Citation: 116 P.2d 425,100 Utah 361
• Decision Date: 21 August 1941
• Docket Number: 6178
• Court: Supreme Court of Utah
• Parties: PARKER v. BAMBERGER, et al

116 P.2d 425

100 Utah 361

PARKER v. BAMBERGER, et al

No. 6178

Supreme Court of Utah

August 21, 1941

Rehearing granted August 29, 1941.

Appeal from District Court, Second Judicial District, Davis County Lester A. Wade, Judge.

Action by Charles J. Parker as administrator of the estate of Paul Jacob Parker, deceased, against Julian M. Bamberger and another, receivers of the Bamberger Electric Railroad Company for the death of plaintiff's intestate.

From an adverse judgment defendants appeal.

Superseding opinion in 100 Utah 354, 101 P.2d 372.

AFFIRMED.

Irvine Skeen & Thurman, and A. U. Miner, all of Salt Lake City, for appellants.

Wendell B. Hammond, of Bountiful, and Homer Holmgren and Rex J. Hanson, both of Salt Lake City, for respondent.

McDONOUGH, Justice. WOLFE and LARSON, JJ., concur. MOFFAT, Chief Justice concurring in part and dissenting in part. PRATT, J., dissents.

OPINION

McDONOUGH, Justice.

In an opinion heretofore handed down by this court, appellants' bill of exceptions was ordered stricken on the ground that Sec. 104-39-4, R. S. U. 1933, requires that a proposed bill must be presented to the judge for settlement within ten days from the date amendments are proposed by the adverse party or if no amendments are thus proposed, within ten days from the date the adverse party agrees that the bill may be settled as proposed. That decision is reported in, Utah, 101 P.2d 372. Appellant petitioned for a rehearing on the ground that respondent's motion to strike, because it was directed at failure to settle the proposed bill in time rather than at presentation thereof in compliance with the statutes, had misled counsel and hence they were not accorded a fair opportunity to argue the point upon which the ruling was made or to call to the court's attention cases holding contrary to our conclusion. Pursuant thereto a rehearing was granted in order to permit counsel to brief and argue the question whether Sec. 104-39-4, prescribes any definite time limit for presenting the proposed bill of exceptions to the trial judge where no amendments are proposed or offered by the adverse parties. Appellants' contention is that it does not. If such contention is correct, the bill of exceptions was improperly stricken and we should now reexamine the case, considering the bill of exceptions and the assignments of error predicted thereon.

For the convenience of the reader the statute, so far as material, is again set out:

104-39-4. "(3) Such draft [proposed bill of exceptions] must contain all the exceptions taken upon which the party relies. Within ten days after such service the adverse party may propose amendments thereto, and serve the same, or a copy thereof, upon the adverse party. The proposed bill and amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill to the judge who tried or heard the case, upon five days' notice to the adverse party, or be delivered to the clerk of the court for the judge. When received by the clerk he must immediately deliver them to the judge, if he is in the county; if the judge is absent from the county and either party desires the papers to be forwarded to the judge, the clerk must, upon notice in writing from such party, immediately forward them by mail or other safe channel; if not thus forwarded, the clerk must deliver them to the judge immediately after his return to the county. When received from the clerk the judge must designate the time at which he will settle the bill, and the clerk must immediately notify the parties of such designation. At the time designated the judge must settle the bill. If no amendments are served, or if served are allowed, the proposed bill may be presented, with the amendments, if any, to the judge for settlement without notice to the adverse party." (Italics added.)

Appellant has cited several cases not heretofore called to our attention to support the contention that under the provisions a proposed bill of exceptions where no amendments are proposed need not be presented to the court for settlement within ten days. The case of Houghton v. Superior Court, 128 Cal. 352, 60 P. 972, 973, involved the California statute from which the statute here involved was taken. In determining that there was no specific time limit within which to present a proposed bill where no amendments are offered, the court said:

"Respondent contends that it is still to be presented within 10 days, and that the only difference in the case, where amendments are proposed and where there are none, is that in the last case notice is not required. But this construction is impossible. When amendments are served the bill and amendments must be presented within 10 days 'thereafter.' The word 'thereafter' can refer to no point of time in case of nonproposal of amendments. The last day upon which amendments could be proposed is not expressly mentioned in the section, and cannot, therefore, be pointed at by the adverb of time."

In addition to pointing to the reasoning therein, counsel here contend that the statute was adopted in this state as thus construed by the California court. In this contention they are in error. The cited California case was decided in 1900. The statute, in so far as its phraseology is pertinent to the present discussion, was in force in this jurisdiction since at least 1898. See § 3286, R. S. U. 1898.

However, the reasoning upon which the decision in that case is based, and the subsequent recognition in California of the validity of the construction of the statute involved together with decisions in Idaho and Montana construing the same wording about which the controversy here revolves in statutes of similar import, are persuasive. See Gay v. Torrance, 143 Cal. 14, 76 P. 717; Burns v. Napton, 26 Mont. 360, 68 P. 17; Woodard v. Webster, 20 Mont. 279, 50 P. 791; Coast Lumber Co. v. Wood, 18 Idaho 28, 108 P. 338.

In our former opinion we adopted such construction of the statute as we believed consonant with the other provisions of the Code of Civil Procedure relative to steps to be taken and the time thereof in perfecting appeals, a construction which prescribed a specified time within which such step must be taken; thus avoiding indefiniteness on the one hand and requiring expedition on the other. In effect we pointed the word "thereafter," construed by the California court as referring to the time of serving amendments, to the antecedent action of the adverse party, or the expiration of the time fixed for such action "thereafter," to-wit, after the service of amendments, or the expiration of the time for service thereof, or the action of the adverse party whereby it is indicated that no amendments are to be proposed. This construction necessitates reading the sentence wherein the word appears:

"The proposed bill and amendments [if any] must, within ten days thereafter," etc. (Italics added.)

The inserted words "if any" would of course be added if the context required. But in construing a statute literalness is the point of departure. We must, hence, first regard the statute with such words omitted. Thus read, only the "bill and amendments" must be presented within ten days. This is in harmony with the construction for which appellants contend. Too, it must be conceded that in looking for the word or phrase to which the word "thereafter" refers we are clearly directed to the words "the adverse party may propose amendments thereto, and serve the same * * * upon the adverse party." Thus, the last act mentioned in the sentence preceding the one in which the word "thereafter" is used is the proposal and service of amendments within ten days, after which the proposed bill and amendments must be presented to the judge. Unless the interpretation indicated by the structure of such successive sentences is to be rejected, because of the import of the statute in its entirety, we should adopt it.

On the other hand, the statute provides that "the proposed bill and amendments" must within ten days after service of the amendments be presented by the party seeking the settlement of the bill to the judge or the clerk for the judge. This is true, if the wording be literally followed, though the amendments are allowed, since the last sentence of the sub-section provides only that as to a bill where the amendments are allowed notice of time of settlement need not be given. There would seem to be no more reason for fixing a ten day limit after proposal of amendments which are allowed by the party seeking settlement of a bill, than where no amendments are proposed, since in the former case the amendments, accepted by the proposing party are as much a part of the bill to be offered for settlement as though contained in the bill as originally proposed.

To construe the provision so as to make the procedure to be followed the same in the case where proposed amendments are allowed and where none are proposed, there must be read into the statute the words: "if not allowed," to read thus: "The proposed bill and amendments [if the latter are not allowed] must, within ten days thereafter, be presented," etc. Supporting such construction in addition to the grammatical structure of the provision, the cases cited point out that it is only where a contest relative to settlement of the bill is to be decided by the court that the procedure relative to settlement therein prescribed is pertinent; and finding no limitation in the statute relative to presentation of a bill where no amendments are proposed, or if proposed are allowed, prescribe a reasonable time therefor.

After a fuller consideration of the argument in favor of the construction contended for by appellants, we are constrained to adopt it and to withdraw our former...