Penn Placer Min. Co. v. Schreiner

• Decision Date: 19 February 1894
• Citation: 35 P. 878,14 Mont. 121
• Parties: PENN PLACER MIN. CO. et al. v. SCHREINER et al.
• Court: Montana Supreme Court

35 P. 878

14 Mont. 121

PENN PLACER MIN. CO. et al. v. SCHREINER et al.

Supreme Court of Montana

February 19, 1894

Appeal from district court, Jefferson county; Thomas J. Galbraith Judge.

Action by the Penn Placer Mining Company and others against John Schreiner and others. From a judgment for plaintiffs defendants appeal. Plaintiffs move to strike from the record appellants' statement on motion for a new trial. Motion denied.

Cowin & Parker and Toole & Wallace, for appellants.

McConnell Clayberg & Gunn, for respondents.

HARWOOD J.

This case stands on motion to strike from the record the statement on motion for new trial--First. Because the statement on motion for new trial was not served within the time prescribed by the statute, or within the period of time provided by order of court. This alleged ground is based upon the respondents' construction of the order of courtextending time. They insist that where the court, by order, extends time to a date named, as "to December 2d," the period of extension expires at the close of the day preceding the date named in the order,--in this instance at the close of December 1st, because December 1st reaches to December 2d. We think the contemplation of such an order of court or stipulation providing time to a certain date within which to do an act in court practice, such as the filing or service of a paper, includes the date named, as the close of the period prescribed. Secondly. It is contended that service of statement on motion for new trial was not made in time although made within the period stated in the order of court extending time to file statement. The order extending time reads, "For filing statement on motion for new trial;" and it is contended that this order did not suffice to extend the time for service of said statement. The record shows that service of statement was waived by telegram from respondents' counsel to appellants' counsel on the 1st day of December, --the day the order of court was made extending time to "file statement." This telegram was made part of the record by amendment, allowed by the trial court, accompanying the objections to the settlement and allowance of the statement, on the alleged ground that it was not served in time.

It is further urged that the statement on motion for new trial should be disregarded by this court, because the evidence is not entirely reduced to narrative form; and that the amendments are...