Smith v. American Falls Canal & Power Co.

• Decision Date: 05 June 1908
• Parties: J. W. SMITH, Respondent, v. AMERICAN FALLS CANAL & POWER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

95 P. 1059

15 Idaho 89

J. W. SMITH, Respondent, v. AMERICAN FALLS CANAL & POWER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

June 5, 1908

MOTION FOR NEW TRIAL-APPEAL-DILIGENCE IN HAVING STATEMENT SETTLED AND MOTION PASSED UPON.

1. Where an appeal has not been taken from the judgment within one year after the entry of such judgment, such appeal will be dismissed upon motion.

2. Where an appeal is taken from an order denying a new trial after the expiration of one year from date of judgment, and proper diligence is not shown in prosecuting such appeal, the same will be dismissed upon proper motion.

3. The law contemplates and requires that a motion for a new trial shall be heard at the earliest practicable period, and, in bringing said motion on to be heard, counsel are required to prosecute with diligence the steps necessary to prepare such motion for hearing; and where it is shown that sixteen months have expired between the date of judgment and the hearing of the mo- tion for a new trial, where no excuse is shown for the delay, the appeal from the order will be dismissed.

4. If the judge in any case refuse to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the supreme court to prove the same. If, however, the failure to settle such statement is not the fault of the trial judge, but is the fault of counsel preparing the same for settlement, the want of diligence may be ground for dismissing the appeal from the order denying the motion for new trial.

(Syllabus by the court.)

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

An action to recover debt and foreclose a mechanic's lien for labor, alleged to have been performed upon a canal system. Motion to dismiss the appeal from the order overruling the motion for a new trial. Motion sustained.

Motion to dismiss the appeal sustained and motion to reinstate the appeal denied. Costs awarded to respondent.

William A. Lee, Hansbrough & Gagon, and F. A. Sweet, for Appellant cite no authorities on points decided.

John W Jones, for Respondent.

As this appeal was not taken within a year after the entry of judgment or decree, the motion to dismiss appeal should be sustained. (McCrea v. McGrew, 9 Idaho 382, 75 P 67; Marchand v. Ronaghan, 9 Idaho 95, 72 P. 731; Robson v. Colson, 9 Idaho 215, 72 P. 951, and cases cited.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

On July 11, 1906, the plaintiff recovered a judgment against the defendant in the district court for Bingham county. A statement on motion for a new trial was afterward prepared and settled by the trial judge and filed in said court on November 6, 1907. An order was made and filed by the trial judge on November 9, 1907, overruling the defendant's motion for a new trial. A notice of appeal from the judgment, and from the order overruling the motion for a new trial, was served and filed in said court on November 21, 1907. The transcript on appeal was filed in this court on January 15, 1908. Counsel for respondent files two motions in this court: 1st. To dismiss the appeal from the judgment, for the reason that the appeal was not taken until more than one year had elapsed after the entry of said judgment or decree. As seen from the above statement, the judgment was entered on July 11, 1906. The notice of appeal from the judgment was served and filed on November 21, 1907, more than sixteen months after the entry of the judgment. This motion was confessed upon the argument and the appeal from the judgment was ordered dismissed. (Marchand v. Ronaghan, 9 Idaho 95, 72 P. 731; McCrea v. McGrew, 9 Idaho 382, 75 P. 67.)

Respondent also filed a second motion to dismiss the appeal from the order overruling the motion for a new trial, for the reason that the motion for a new trial was not passed upon within one year from the rendition of the judgment, and no satisfactory showing has been made accounting for such delay. The judgment was entered on July 11, 1906. The statement was settled by the trial court on November 6, 1907. The motion for a new trial was presented to the court some time between November 6 and November 9, 1907, and upon the latter date, about sixteen months after the rendition of said judgment, was overruled.

In explanation of the delay, counsel for appellant file an affidavit of Wm. A. Lee, one of appellant's counsel, in which it is stated that the reporter furnished a transcript of the evidence about October 15, 1906; that counsel for appellant prepared its statement or bill of exceptions, and served the same on counsel for respondent on November 21st, and thereupon counsel for respondent was given thirty days to prepare amendments thereto; that the amendments were prepared and served about the 21st of December, and consisted, as shown in the affidavit of counsel for appellant, of about twenty-three pages of closely typewritten matter, consisting of 238 separate proposed amendments, which counsel for appellant were unwilling to accept, and on the 31st day of December returned the same to the clerk for delivery to the judge for settlement, and advised the court that counsel for appellant were ready and willing to attend, at any time or place, to aid in the settlement of said proposed amendments; that in February, 1907, affiant counsel for appellant, who resides in Salt Lake City, Utah, having been advised that the district court was in session at Blackfoot, attended the same for the purpose of having said statement settled, and appeared in open court and requested that the settlement of said statement be taken up, but said court was engaged in the trial of jury cases until the end of the term, and was unable to take up said statement at that time; that again in May following, affiant counsel for appellant went to Blackfoot for the sole purpose of again moving for the settlement of said statement but found the court engaged in the trial of cases and unable to reach said settlement, and, both parties being present, it was agreed that defendant's counsel should go through said amendments and indicate such amendments as he was willing to accept, and report the same in writing within twenty days, and thereafter plaintiff's counsel should do likewise; that an order was entered to that effect, and that defendant's counsel reported in writing to the court and to plaintiff, and requested that said statement be settled at once; that following this record counsel for defendant continued upon every possible occasion to urge its settlement, and signified their willingness to aid the court in such labor.

In opposition to this affidavit John W. Jones, counsel for respondent, files an affidavit, in which he alleges that the proposed amendments and the statement were filed prior to January 1, 1907; that during the time from January 1, 1907 to July 11, 1907, affiant repeatedly urged upon counsel for appellant the necessity of an early disposition of the motion for new trial in this action, and that counsel for plaintiff held himself in readiness at all times to take up and dispose of said matter, and, upon one occasion, William A. Lee, of counsel for appellant, and affiant considered together the right of respondent to prevail with reference to a large number of said proposed amendments to the statement, and agreed upon the allowance of certain amendments, and thereafter the said William A. Lee left the matter of the disposition of the remaining proposed amendments in an unsettled condition, and nothing was done with reference thereto for a long time; that upon several occasions this affiant made arrangements with the judge of...