Richardson v. Bohney

• Decision Date: 17 June 1910
• Parties: GEORGE A. RICHARDSON, Respondent, v. JOSEPH D. BOHNEY et al., Appellants
• Court: Idaho Supreme Court

109 P. 727

18 Idaho 328

GEORGE A. RICHARDSON, Respondent, v. JOSEPH D. BOHNEY et al., Appellants

Supreme Court of Idaho

June 17, 1910

TRANSCRIPT-MOTION TO STRIKE AND SUBSTITUTE-PRINTING TRANSCRIPT-RULES OF COURT-APPEAL FROM ORDER-AMENDMENT OF ORDER AFTER APPEAL-JURISDICTION OF COURT.

(Syllabus by the court.)

1. It is the duty of counsel to have their transcripts on appeal printed in accordance with the rules of the court.

2. After an order refusing to settle a bill of exceptions has been appealed from, it is then too late for the trial court to amend such order, as it loses jurisdiction in the matter when the appeal is taken. In such case a motion to substitute an amended order for the original will be denied.

3. The preparation and settlement of a statement or bill of exceptions is a proceeding within the meaning of the term "proceeding" as used in sec. 4229, Rev. Codes.

4. Where application is made to the court to settle a bill of exceptions after the time has expired for serving the same on the ground of mistake, inadvertence or excusable neglect and the court finds that the bill was not served in time by reason of mistake, inadvertence, surprise or excusable neglect, it is the duty of the court to grant relief from such default.

5. Where an appeal is taken from an order, the trial court has no jurisdiction to change or correct such order after the appeal therefrom has been taken, at least until the case is remanded and jurisdiction is again obtained.

APPEAL from the District Court of the Sixth Judicial District, for Fremont County. Hon. J. M. Stevens, Judge.

Application to have a bill of exceptions settled. Denied. Reversed.

Reversed and remanded. Costs awarded to the appellant.

J. D Millsaps, for Appellants.

A bill of exceptions is a proceeding within the meaning of sec. 4229, Rev. Codes, which is identical with sec. 473, Code of Civil Procedure of Cal. (Lukes v. Logan, 66 Cal. 33, 4 P. 883; Irwin v. Bank, 6 Ohio St. 86; Wilson v. Allen, 3 How. Pr. 371; Rich v. Husson, 1 Duer, 620; Wilson v. Macklin, 7 Neb. 52; Strong v. Hardenburgh, 25 How. Pr. 438; Pollitz v. Wickersham, 150 Cal. 238, 88 P. 911; Stonesifer v. Kilburn, 94 Cal. 33, 29 P. 332; Banta v. Siller, 121 Cal. 414, 53 P. 935; Vinston v. Los Angeles Ry. Co., 147 Cal. 479, 82 P. 53; Cole v. Wilcox, 99 Cal. 549, 34 P. 114; Sandstrom v. Smith, 11 Idaho 779, 84 P. 1060.)

Soule & Soule, for Respondent.

If the time for the preparation and service of a bill of exceptions has expired, the court has lost jurisdiction to extend that time, and it cannot under any circumstances be extended. (Sandstrom v. Smith, 11 Idaho 779, 84 P. 1060; Hoehnan v. New York Drygoods Co., 8 Idaho 66, 67 P. 796; Simpson v. Pioneer Irr. Dist., 17 Idaho 435, 106 P. 1.)

Ignorance of the law is no excuse. The courts in the following cases refused to relieve laymen from a condition caused by ignorance of law. Why, then, relieve a member of the bar? (Chase v. Swain, 9 Cal. 130; Dusy v. Prudom, 95 Cal. 646, 30 P. 798; Harper v. Mallory, 4 Nev. 447; Chaffin v. Fulkerson, 95 Ky. 277, 24 S.W. 1066; Beekman v. Franker, 3 Caines, 95; Abrams v. Virginia F. Ins. Co., 93 N.C. 60; Sherman v. Jorgenson, 106 Cal. 483, 39 P. 863.)

When it subsequently is made to appear to the trial court that an order has been made or entered which does not correctly state his decision, he has authority to correct it. (Whitney v. Superior Court, 147 Cal. 536, 82 P. 37; O'Brien v. O'Brien, 124 Cal. 422, 57 P. 225; Canadian A. M. & T. Co. v. Clarita L. & L. Co., 140 Cal. 672, 74 P. 301.)

SULLIVAN, C. J. Ailshie, J., concurs.

OPINION

SULLIVAN, C. J.

This is an appeal from an order made by the trial judge denying defendants' motion to settle, allow and certify the defendants' proposed bill of exceptions with amendments thereto. Said motion was made on the ground that the failure to serve said bill of exceptions within due time was on account of mistake, surprise, inadvertence and excusable neglect of one of the attorneys for defendants. It appears from the record that judgment was entered against the defendants on the 14th day of July, 1909, and that a stipulation was entered into by respective counsel to the effect that either party might have ninety days from the entry of the judgment in which to prepare and serve a bill of exceptions on motion for a new trial, and the proposed bill of exceptions was not served upon opposing counsel until the 14th day of October, 1909, two days after the time allowed by said stipulation for serving the same had expired. Counsel for respondent interposed objections to the settlement of said bill of exceptions based on the ground that the same had not been served in time, and also at the same time proposed amendments to said bill. Counsel for appellants thereupon moved the court and served proper notice thereof, on opposing counsel, to the effect that they had made application to the court for an order to settle said bill of exceptions, and that defendants be relieved from the proposed objections to the settlement thereof on the ground of mistake, inadvertence, surprise and excusable neglect as set forth in two affidavits attached to said motion, which were affidavits made by defendants' attorneys.

It appears from said affidavits that the attorney for defendants, who took an active part in the preparation and trial of said cause, prepared the bill of exceptions, and that the same was ready for service some time prior to the time stipulated and agreed upon; that at that time said attorney was extremely busy with other matters and requested his partner to make service of said papers and instructed him how to make such service; that the attorney receiving such instructions had had but little experience in such matters and was not familiar with the practice in regard thereto; that said attorney failed and neglected to make said service within the time stipulated, and when that fact was ascertained by his partner, he served said proposed bill upon opposing counsel, two days after the stipulated time had expired.

The trial judge upon the showing made by said affidavits denied the motion and refused to settle said bill. It appears that no written order was made at the time said motion was denied, but thereafter the attorneys for appellants prepared an order and sent it to the judge for his signature, and it was signed by the judge. Said order is as follows:

"In the matter of the motion and application to the court, by the defendants, asking that the bill of exceptions, on appeal in the above-entitled action, with the amendments proposed thereto, be settled, allowed and certified, and thereupon filed with the clerk of said court, and that said defendants be relieved from the objection reserved by the plaintiff, on the ground of mistake, inadvertence, surprise and excusable neglect, the court having heard the argument of the attorneys for the defendants in support of said motion and the argument of the attorneys for the plaintiff in opposition thereto, and it appearing to the court that the said bill of exceptions was not served in due season by reason of the mistake, inadvertence, surprise and excusable neglect of one of the attorneys for the defendants, who was charged with the matter of preparing and serving said bill of exceptions, but that the court has no power to relieve the parties from the objections so made by the plaintiff, and the said plaintiff still insisting upon the said objection;

"It is ordered that the said motion be, and the same is, for the reasons aforesaid, hereby denied, and the application for the settlement of the said bill of exceptions is refused.

"Dated this 14th day of December, 1909.

"Filed January 6th, 1910.

"J. M. STEVENS, Judge."

On the 14th day of January, the appellants served their notice of appeal on the attorneys for respondent and on the same day filed their undertaking on appeal. It appears that a motion was made on January 28, 1910, by counsel for respondent to amend said order denying the application to settle said bill of exceptions, and it appears that said motion was granted by the trial judge. Said amended order denying the application to settle bill of exceptions is as follows:

"In the matter of the motion and application of the defendants asking that the bill of exceptions on appeal in the above-entitled action with the amendments proposed thereto be settled, allowed and certified and thereupon filed with the clerk of said court, and that the said defendants be relieved from the objection reserved by the plaintiff to...