Warnock Ins. Agency v. Peterson Real Estate Inv. Co.

• Decision Date: 27 April 1909
• Docket Number: 1988
• Citation: 35 Utah 542,101 P. 699
• Court: Utah Supreme Court
• Parties: WARNOCK INSURANCE AGENCY, Appellant, v. PETERSON REAL ESTATE INVESTMENT COMPANY, Respondent

101 P. 699

35 Utah 542

WARNOCK INSURANCE AGENCY, Appellant, v. PETERSON REAL ESTATE INVESTMENT COMPANY, Respondent

No. 1988

Supreme Court of Utah

April 27, 1909

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by Warnock Insurance Agency against Peterson Real Investment Company. On defendant's motion to dismiss plaintiff's appeal from an adverse judgment.

APPEAL DISMISSED.

Henderson Pierce, Critchlow & Barrette, for appellant.

M. E Wilson for respondent.

FRICK J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

Respondent filed a motion to dismiss the appeal in this case upon the ground that the appeal was not taken within the time required by section 3301, Comp. Laws 1907, which requires an appeal to be taken within six months from the entry of judgment appealed from. This section has frequently been construed by this court, and it has uniformly held that the time for appeal begins to run from the time the motion for a new trial has been disposed of. The cases are collated in a note to the foregoing section, and need not be referred to here. When the motion to dismiss in this case was interposed, the record on appeal disclosed that the judgment appealed from was entered March 9, 1908, and that the notice of appeal was served and filed October 2, 1908, which was more than six months after the entry of judgment. The motion for a new trial, and the order overruling it, were attached to the judgment roll, and were not incorporated into the bill of exceptions, nor made a part of it, by reference, or otherwise. Under the rulings of this court, (Walker Bros. v. Skliris, 34 Utah 353, 98 P. 114; Hecla Min. Co. v. Gisborn, 21 Utah 68, 59 P. 518), there was therefore no authentic record before us showing that the appeal was taken within the time required by law, and hence nothing to show that this court had jurisdiction. Upon this status of the record, and before the motion to dismiss the appeal was submitted, the appellant asked, and was granted, leave to withdraw the record. After the record was withdrawn, counsel for appellant, on February 16, 1909, notified respondent's counsel, in substance, that appellant's counsel "will apply to the said [district] court to settle and sign a bill of exceptions in this cause in the form now proposed by the undersigned." The bill of exceptions, as then proposed, contained a copy of the notice of intention to move for a new trial, and the order of the district court overruling the motion, which was dated April 10, 1908. The original bill of exceptions was settled, allowed, and signed May 23, 1908. On the 19th day of February, 1909, and after the time to settle a bill of exceptions had expired, the district court allowed, settled, and signed appellant's proposed amended bill of exceptions as aforesaid, to which counsel for respondent objected and excepted, upon the ground that the district court was without power to do so, and now insists on this objection, as well as on his motion to dismiss the appeal upon the ground that this court is without jurisdiction to entertain the appeal.

Counsel for respondent contends that, as the record stood before the alleged amendment by inserting therein the matters before mentioned, it affirmatively appeared that the appeal was not taken in time, and that this court thus had no jurisdiction of the appeal; that the district court was without power or legal authority to change the bill of exceptions so as to make it appear therefrom that a motion for a new trial was in fact filed and overruled, and hence the record still lacks the necessary element which confers jurisdiction upon this court. Upon the other hand, appellant's counsel contend: (1) That the order overruling the motion for a new trial, which discloses that a motion for a new trial was made, and when it was ruled on, constitutes a part of the judgment roll, and hence the record affirmatively shows that the appeal was taken in time; and (2) that if this order is not a part of the judgment roll, then it is now made a part of the bill of exceptions, and hence the record discloses that this court has jurisdiction to hear and determine the appeal. That the notice of intention to move for a new trial, and what we have termed herein the "motion for a new trial," is not a part of the judgment roll, and, if it is intended to make it a part of the record on appeal, it must be incorporated into the bill of exceptions, or be made a part thereof by reference, we have very recently decided. ( Walker Bros. v. Skliris, 34 Utah 353, 98 P. 114.) It has also been held by this court that the order overruling the motion for a new trial is not a part of the judgment roll, and, unless it is made a part of the bill of exceptions, it is not a part of the record on appeal, and cannot be considered by this court. (Hecla Min. Co. v. Gisborn, 21 Utah 68, 59 P. 518.) Counsel for appellant contend that it was not necessary to decide the question in the case last referred to, and hence what is there said is merely obiter. We do not think so. The decision was based upon two grounds, one of which was that this court was powerless to review the error which it was claimed the court committed in refusing a new trial, for the reason that the order overruling the motion was not before the court, except as it was made a part of the judgment roll. It was held that such an order could be made a part of the record only by making the order a part of the bill of exceptions, which must be settled, allowed, and certified by the trial judge as provided by the statute. While the order overruling a motion for a new trial might very properly be made a part of the judgment roll for the purposes of an appeal, it is nevertheless a matter for the Legislature, rather than the courts, to say what shall constitute the record on appeal. The case of Hecla Min. Co. v. Gisborn, supra, has been decided for over nine years, and has thus established a rule of practice which we are not willing to disturb at this time. The case of Walker Bros. v. Skliris, supra, also, inferentially at least, holds that the order overruling the motion for a new trial must be brought into the record on appeal by making it a part of the bill of exceptions. The contention that the order overruling the motion for a new trial was a part of the judgment roll, and hence a part of the record on appeal, therefore, cannot be sustained.

Did the trial court have the authority to amend the bill of exceptions by adding thereto the notice of intention to move for a new trial and the order overruling the motion, as was done in this case? We have given the matter careful consideration; and, in view of our statutes, and in the light of our former rulings, and of the authorities generally, we have, with some hesitation, if not reluctance, come to the conclusion that the district court was without authority to allow the amendment, and hence the only authentic record before us shows that the appeal was not taken within the time allowed by our statute. If the proposed amendment were no more than to supply a defect or omission in the judgment roll which the clerk is required to prepare and certify, or if the certificate of the judge to the bill of exceptions were defective, or if it were merely to correct some other error not of substance, or mere defect, in either the judgment roll or bill of exceptions, we would have no hesitancy in permitting the correction to be made nunc pro tunc. But the defect is not of such character. It is one...