Salina Canyon Coal Co. v. Klemm

• Decision Date: 18 July 1930
• Docket Number: 4808
• Citation: 290 P. 161,76 Utah 372
• Court: Utah Supreme Court
• Parties: SALINA CANYON COAL CO. v. KLEMM et al

290 P. 161

76 Utah 372

SALINA CANYON COAL CO. v. KLEMM et al

No. 4808

Supreme Court of Utah

July 18, 1930

Appeal from District Court, Sixth District, Sevier County; N. J Bates, Judge.

Action by the Salina Canyon Coal Company against Emil J. Klemm wherein the Boston Acme Mines Development Company and another intervened, making the Columbia Trust Company a party. From the judgment, plaintiff appeals and intervener named cross-appeals.

Motion to dismiss appeal denied and decree amended, and as amended affirmed.

B. L Liberman and A. C. Inman, both of Salt Lake City, for appellant.

P. G Ellis, of Salt Lake City, for respondents.

BRAMEL, District Judge. STRAUP, ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur. CHERRY, C. J., being disqualified, did not participate.

OPINION

Motion to Dismiss Appeal.

BRAMEL District Judge.

The Boston Acme Mines Development Company, an intervener in the court below and a respondent and cross-appellant here, moves to dismiss the appeal of the Salina Canyon Coal Company. This court will notice the following grounds of the motion: (1) Klemm, who was a party defendant in the court below, was not served with notice of appeal; (2) the notice of appeal does not sufficiently describe the judgment appealed from; (3) the notice of appeal was not filed in the court below within six months after the entry of the judgment appealed from.

1. Mr. Klemm filed a disclaimer in the court below. True, he did not label his pleading with the name "disclaimer," but it was in substance a disclaimer. It denied that plaintiff owned any interest in the land in question, alleged that the intervener Boston Acme Mines Development Company owned the said property, and further alleged that all the agreements and payments made in the name of Klemm were made by said Klemm for the use and benefit of said Boston Acme Mines Development Company. The said development company intervened in said action, set up its claim to the property involved herein, and alleged that Klemm was its agent and representative in the transaction and that he had or claims no interest in the premises except on behalf of said intervener. And Klemm, as treasurer of the development company, verified the answer wherein it makes these allegations. The trial court also found and decreed that Klemm had no interest in the transactions. Our opinion is that Klemm disclaimed all interest in the subject-matter of this action and ceased to be a party thereto and that the litigation was taken over and carried on by his principal.

There also remains some doubt as to whether an attorney who appeared in the case for Klemm and signed papers as Klemm's attorney a number of times, and who never notified opposing counsel of his withdrawal as such attorney, was not Klemm's attorney for the purpose of being served with notice of appeal. Our statutes seem to imply that an attorney who has appeared for a party may be treated as such by opposing counsel until opposing counsel are notified of dismissal or change of attorneys. Comp. Laws Utah 1917, §§ 329 and 7030; Lacoste v. Eastland, 117 Cal. 673, 49 P. 1046. However, the answer of Klemm and the answer of the intervener, verified by Klemm, and the evidence, findings, and decree, show that Klemm was merely the agent of the intervener and had no individual interest whatever in the subject-matter of the action. One who disclaims need not be served with notice of appeal. Plough v. Nelson, 49 Utah 35, 161 P. 1134; State Bank v. Mortensen, 66 Utah 290, 241 P. 1055; Castle v. Delta L. & W. Co., 58 Utah 137, 197 P. 584. There is no merit in the first ground of the motion.

2. The description of the judgment is sufficient. A mere clerical error in specifying the date of the judgment and a typograhpical error in using the word "interveners" instead of "intervener" are not sufficiently mystifying to mislead anybody in a case where there is only one judgment to be appealed from. This is so held in many cases. Price v. Western L. & S. Co., 35 Utah 379, 100 P. 677, 19 Ann. Cas. 589; Swasey v. Adair, 83 Cal. 136, 23 P. 284; Ferrari v. Beaver Hill Coal Co., 54 Ore. 210, 94 P. 181, 95 P. 498, 102 P. 175, 1016; Estate of Nelson, 128 Cal. 242, 60 P. 772; Jones v. Iverson, 131 Cal. 101, 63 P. 135. There is no merit in the second ground of the motion.

3. The third ground in the motion is that the notice of appeal was not filed within six months after the entry of judgment. The motion was served on the last day and in time, and on the same day was telegraphed to the clerk of the trial court and the telegraph copy was filed. Next day the original was filed. Comp. Laws Utah 1917, § 6117, provides that whenever any notice, information, or intelligence, written or otherwise, is required to be given, the same may be given by telegraph, and that the dispatch, if sent by telegraph, shall be delivered in writing to the person entitled thereto, his agent or attorney. This provision permitted the copy for filing to be sent by telegraph. There is no merit in the third ground of the motion.

The motion to dismiss the appeal is denied.

Motion to Strike the Bill of Exceptions.

Respondent Boston Acme Mines Development Company also moves that appellant's bill of exceptions be stricken, chiefly on the following grounds: (1) That the draft of the bill of exceptions served upon respondents did not have the exhibits attached; (2) that no notice of the time and place the bill would be presented to the judge for settlement was given respondent, and no notice of the time the judge would settle the bill was given; (3) that the bill was not settled in time; and (4) that it does not appear from the record that the bill was filed with the clerk of the trial court.

1. Passing upon these objections in their order, it may be said that our statute provides that documents on file in the action or proceeding may be copied into the bill of exceptions, or the substance stated or a reference thereto sufficient to identify them may be made. Comp. Laws Utah 1917, § 6967. A bill of exceptions need not set out in full or state the substance of an exhibit, nor is it required that the exhibit be attached to the bill. A reference to the exhibit by its identification mark or number is sufficient. Bingham L. & T. Co. v. McDonald, 37 Utah 457, 110 P. 56. There is no merit in the first ground of the motion.

2. As to the second ground of the motion, it may be said that each and every prescribed step in the preparation of a bill of exceptions is not necessarily and of and in itself a jurisdictional prerequisite. Comp. Laws Utah 1917, § 6969, as amended by Laws Utah 1925, c. 51 provides in substance that the party upon whom the proposed bill of exceptions is served, may within ten days thereafter prepare amendments thereto and serve the same or a copy thereof upon the other party, and that the party seeking settlement of the bill must within ten days thereafter, and upon five days' notice to the adverse party, present the bill to the judge for settlement. Now, in these provisions we note that the party against whom the bill is proposed may, when the bill is served upon him, do one of two things, viz.: He may deliver to his opponent an original draft of his proposed amendment, or he may give him a copy thereof. If a mere copy, not authenticated with proper signature and not competent to become a record of the court, is served, it might well indicate that the party wished to present his amendments personally at the time the proposed bill was presented, and in that case a failure of the proponent of the bill to give notice might be very material. But in the case at bar the original properly signed proposal of amendment was served upon the counsel for appellant and delivered to him when respondent returned the proposed bill of exceptions. This book of proposed amendments was delivered with the bill to the judge. The judge considered and ruled upon the proposed amendments. Some of them he allowed and some he rejected. Everything respondent could have done if he had been served with notice of the time and place the documents would be presented to the judge was done for him by his opponent. No prejudice to respondent resulted from failure to receive notice of the presentation of the documents to the judge. The statutory requirement that the clerk give the parties notice of the time the judge will settle the bill is purely directory. To hold otherwise would make the appellant responsible for the acts or defaults of the clerk. Nothing in the case of Van Why v. Southern Pac. Co., 31 Utah 15, 86 P. 485, conflicts with the above. In the Van Why Case there was doubt as to whether the proponent of the bill of exceptions presented the proposed amendments to the judge, and there were also several other uncertain matters in the proceeding. There is no merit in the second ground of the motion.

3. The record contains motions for orders and orders extending the time to prepare the bill, and the bill of exceptions contains recitals that these orders were made and the bill was signed within the time given. If the record's statement that such orders were in fact made is challenged, the full record upon which respondent bases his challenge should be produced in court. The rules of this court provide a method for supplementing the record in such cases, but respondent has not seen fit to avail himself of the same. There is no merit in this ground of the motion to strike.

4. As to the point that the record fails to show that the bill of exceptions was ever filed with the clerk of the trial court a more serious question arises. In order to become a record in this court, the bill of exceptions must be first filed in the court below. The mere absence of the filing stamp of the clerk is...