Swartz v. Davis

• Decision Date: 10 December 1903
• Citation: 9 Idaho 238,74 P. 800
• Parties: SWARTZ v. DAVIS
• Court: Idaho Supreme Court

74 P. 800

9 Idaho 238

SWARTZ v. DAVIS

Supreme Court of Idaho

December 10, 1903

TIME IN WHICH TO SETTLE BILL OF EXCEPTIONS OR STATEMENT.

1. The judge or court has no power to extend the time for preparing and serving bill of exceptions or statement on motion for a new trial after the time therefor has expired.

2. When the appeal is on the judgment-roll alone, and no error appears on the face thereof, the judgment must be sustained.

(Syllabus by the court.)

APPEAL from District Court of Idaho County. Honorable Edgar C Steele, Judge.

Action to recover for damages alleged to have been caused by defendant's sheep. Judgment for plaintiff. Affirmed.

Clay McNamee and George W. Goode, for Appellant.

In this cause attorneys for respondent participated in making up the bill of exceptions and statement of the case and bill of exceptions as presented by attorneys for appellant thereafter attorney for respondent waived any irregularities that may have subsequently occurred, although attorneys for appellant claim no irregularities had occurred in the presentation of the bill of exceptions and statement of the case, as to time, or otherwise. "If a bill of exceptions is presented for settlement after the trial of the cause, and is agreed upon by respondent's attorney, and said bill is thereafter settled by the judge and used on the hearing of the motion for a new trial, it is too late for the respondent to raise the objection for the first time in this court that such bill was not settled in time." (Stufflebeam v Montgomery, 3 Idaho 20, 26 P. 125.)

Allen Miller, for Respondent, cites no authorities upon the point decided by the court.

SULLIVAN C. J. Stockslager, J., concurs. Ailshie, J., did not sit in the case.

OPINION

SULLIVAN, C. J.

A motion was made to strike appellant's bill of exceptions from the transcript on the ground that said bill was neither served nor settled within the time allowed by the stipulation of respective counsel or the time allowed by the court or judge.

It appears from the transcript that this case came on for trial on the twentieth day of September, 1902, and a stipulation was entered into by respective counsel that each might have sixty days after the filing of the judgment within which to prepare and serve his bill of exceptions or statement of the case.

The judgment was filed September 22, 1902. Application was made by counsel for appellant on the nineteenth day of November 1902, for an extension of the time in which to prepare and serve a bill of exceptions, or statement,...