Schvaneveldt v. Clegg

• Decision Date: 22 August 1929
• Docket Number: 4779
• Citation: 280 P. 230,74 Utah 427
• Court: Utah Supreme Court
• Parties: SCHVANEVELDT v. CLEGG

280 P. 230

74 Utah 427

SCHVANEVELDT v. CLEGG

No. 4779

Supreme Court of Utah

August 22, 1929

Appeal from District Court, First District, Cache County; M. C Harris, Judge.

Action to quiet title by Joseph Schvaneveldt against William D Clegg, in which a counterclaim was set up to quiet title in defendant.Judgment for plaintiff, and defendant appeals.

AFFIRMED.

H. S Tanner, of Salt Lake City, for appellant.

E. M. Bagley, of Salt Lake City, and P. J. Evans, of Preston, Idaho, for respondent.

STRAUP, J. CHERRY, C. J., and ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

STRAUP, J.

This is a motion to strikethe bill of exceptions on the ground that it was not served or filed in time.The action is one to quiet title to land in the plaintiff.There is a denial and a counterclaim to quiet the title in the defendant.The case was tried to the court.The trial began November 2, 1927.On a submission of the case, and prior to preparing, signing, and filing findings and a decree, the court orally indicated that his findings and judgment would be in favor of the plaintiff quieting the title in him.At about that time, and on November 4, 1927, the court, on the defendant's application, granted him 60 days' additional time in which to prepare, serve, and file a bill of exceptions.That was nearly a month before the findings and decree were prepared, signed, and filed; the findings and decree having been signed and filed December 2, 1927.On December 8, 1927, notice was served on the defendant of the entry of the judgment.On December 6, 1927, the defendant served, and on December 12, 1927, filed, a motion for a new trial.The motion was overruled January 18, 1928, and on the same day notice was given by the plaintiff to the defendant of the overruling of the motion.On January 28, 1928, the court granted the defendant 60 days' additional time in which to prepare, serve and file a bill of exceptions; on June 14, 1928, 60 days' additional time; and on July 9, 1928, 60 days' additional time.The notice of appeal was served July 6 and was filed July 7, 1928.The bill of exceptions was "filed before service July 26, 1928," and was settled, signed, and again filed August 7, 1928.On settling and signing the bill, the court certified "that the foregoing bill of exceptions" contained a true transcript of all of the evidence and rulings made during the trial and all exhibits "together with copies of orders of this court under dates of November 4, 1927, January 28, 1928, June 14, 1928, and July 9, 1928, signed by this court extending time within which to prepare and serve the proposed bill of exceptions in the above-entitled cause and the foregoing proceedings and orders are hereby allowed and settled as the bill of exceptions in this cause."The bill contains copies of the orders referred to which show that in each 60 days' additional time was granted on the dates stated to prepare, serve, and file a bill of exceptions.There also is in the record a minute entry of a copy of an order signed by the judge of date August 7, 1928, and which is attached to and made a part of the judgment roll, wherein it is recited that the "defendant's proposed bill of exceptions having been heretofore presented to the Judge of this court for settlement, and this day and hour having been appointed by the Judge of this court for the settlement of said bill, and notice having been given to counsel for the respective parties of the appointment of this time and as no suggestions are made in reference to said bill, the court proceeded to examine the said bill and the same is allowed and settled and a certificate to that effect is endorsed thereon."On the record it is not clear just when the bill was served.There is, on the inside cover of the bill, the clerk's filing marked, "Filed before service July 26, 1928."There is, on the first page of the bill, a proposed statement of date July 12, 1928, signed by counsel for the defendant and addressed to plaintiff's counsel, to the effect that the plaintiff and his counsel"take notice that the defendant hereby serves upon you the attached bill of exceptions" and that the "same will be presented to the court in due time for settlement."But there is no acceptance or acknowledgment of service of any kind by plaintiff or his counsel or other evidence of service.There is also in the bill a proposed stipulation dated "the day of July, 1928," signed by counsel for the defendant, that the "foregoing bill is hereby returned this day of July, 1928, no amendments proposed," and that it is stipulated that the "foregoing bill of exceptions is true and correct and may be settled without notice."But that also was not signed by plaintiff or his counsel.We, however, think it fairly inferable that the bill was tendered for service some time in July, or, at least, some time prior to August 7, 1928, but that plaintiff's counsel declined to accept or to acknowledge service of it.

The rule in this jurisdiction, by numerous decisions, is well settled that while the court or judge, before the statutory period for service and the filing of a bill has expired, may enlarge the time but has no authority to do so when the statutory period or an enlarged period granted within the time in which a bill was permitted to be filed had fully expired, except as the parties may have consented thereto or the discretionary power of the court invoked under the provisions of Comp. Laws Utah 1917, § 6619.It is unnecessary again to refer to the numerous decisions to that effect.

Our statute(Comp. Laws Utah 1917, § 6969, as amended bychapter 51, Laws Utah 1925), so far as material, provides:

"When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within thirty days after the entry of judgment if the action were tried with a jury, or after service of notice of the entry of judgment if the action were tried without a jury, or after service of notice of the determination of a motion for a new trial, or in case an appeal is taken before the bill of exceptions is settled service of the notice aforesaid shall not be necessary and the appellant shall, within thirty days after service of his notice of appeal, prepare a draft of a bill and serve the same, or a copy thereof, upon the adverse party."

What principally divides the parties is whether, in calculating the time within which the bill was required to be served from notice of overruling the motion for a new trial, the defendant may avail himself of the 60 days' additional time granted him November 4, 1927, nearly a month before the findings and decree were signed and filed and more than a month before the motion for a new trial was made and filed.

There is no doubt that the time in which to serve the bill began to run from the date of service of notice of overruling the motion for a new trial, which was January 18, 1928.The defendant had the statutory period of 30 days running from that date.If he may avail himself of the 60 additional days granted him November 4, 1927, such additional time extended his time to April 18, 1928.He undoubtedly was entitled to avail himself of the additional 60 days granted January 28, 1928, which, if he may avail himself of the sixty days granted November 4, 1927, extended his time to June 18, 1928.From such a calculation the order granted June 14, 1928, was within the enlarged period, and hence was an authorized order granting sixty days' additional time, or to August 18, 1928.The bill was served some time in July, 1928, and was settled and filed August 7, 1928, and under such calculation the bill was served and settled in time without the additional 60 days granted July 9, 1928.However, if the defendant was not entitled to avail himself of the 60 days' additional time granted November 4, 1927, his time, under the statute and as enlarged by the order of January 28, 1928, granting 60 days' additional time, expired April 18, 1928, and thus when the order of June 14, 1928, was granted the defendant's time had fully elapsed for nearly two months in which to serve a bill, unless discretionary power of the court was invoked under the provisions of section 6619, which was not done.In such view the bill, when served and settled in August, 1928, was much too late.

It is the contention of the respondent that because the order of November 4, 1927, was made nearly a month before the decision in the cause was rendered, before the findings, conclusions and decree were signed and filed, more than a month before the defendant's motion for a new trial was made, and more than two months before notice was given of the overruling of the motion for a new trial when the time within which a bill was required to be served began to run, the order of November 4, 1927, was a nullity, and hence the defendant was not entitled to avail himself of the 60 days' additional time granted him by that order; that the defendant was required to serve his bill within the statutory period of 30 days from notice of overruling the motion for a new trial and as enlarged by the order of January 28, 1928, which extended his time to April 18, 1928, and hence the order of June 14, 1928, granted nearly two months thereafter was unauthorized.In support of such views respondent cites and relies on the cases of Planters' Mut. Ins. Ass'n v. Rose, 27 Okla. 530, 112 P. 966;Wyant v. Beavers, 49 Okla. 30, 150 P. 480;Cameron v. Arcata & M. R. R. Co., 129 Cal. 279, 61 P. 955;Wayland v. Woolley, 61 Utah 287, 213 P. 200;Emerson, etc., Imp. Co. v. Stringfellow, 57 Utah 284, 194 P. 340;Houghton v. Barton, 49 Utah 611, 165 P. 471;andWatson v. Odell, 53 Utah 96, 176 P. 619.Many cases also are cited by him to the effect that where a bill of...