White v. Springfield Fire & Marine Ins. Co.

• Decision Date: 26 January 1892
• Docket Number: Civil 304
• Citation: 29 P. 1006,3 Ariz. 352
• Parties: WILLIAM J. WHITE, Plaintiff and Appellee, v. THE SPRINGFIELD FIRE AND MARINE INSURANCE COMPANY, Defendant and Appellant [*]
• Court: Arizona Supreme Court

29 P. 1006

3 Ariz. 352

WILLIAM J. WHITE, Plaintiff and Appellee, v. THE SPRINGFIELD FIRE AND MARINE INSURANCE COMPANY, Defendant and Appellant ^[*]

Civil No. 304

Supreme Court of Arizona

January 26, 1892

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. Joseph H. Kibbey Judge.

Affirmed.

H. N Alexander, for Appellant.

C. F Ainsworth, for Appellee.

The bill of exceptions in this case was not presented to the judge before whom it was tried for his allowance within the time prescribed by paragraph 828 of the Revised Statutes of 1887,--viz., within ten days after the conclusion of the trial. There is no authority for allowing a bill of exceptions after the expiration of the time prescribed by statute within which the bill shall be presented to the trial judge for his allowance. In the case of Cameron v. Sullivan, 15 Wis. 510, the supreme court, on motion to strike out the bill of exceptions, says: "We know of no statute or rule of court which authorizes the signing and settling of a bill of exceptions after such a lapse of time. State v. Smith, 38 Kan. 194, 16 P. 254.

In Hake v. Strubel, 121 Ill. 321, 12 N.E. 676, it is held that when the court allowed and signed a bill of exceptions after the time prescribed it was a mere nullity. Doherty v. Lincoln, 114 Mass. 362; Conway v. Callahan, 121 Mass. 165; Purcell v. Boston etc. S. S. Line, 151 Mass. 158, 23 N.E. 834; Fetchhinner et al. v. Trounstein, 20 P. 704; Weshmier v. State ex rel. Wilcox, 110 Ind. 523, 11 N.E. 291.

It is the duty of a party bringing a cause to the supreme court to see to its proper preparation for an appeal, and when the record does not disclose that it was through the fault of the trial judge or opposite party that appellant's bill of exceptions was not filed within the time prescribed by the statute, the presumption of negligence is against the appellant, and it cannot complain if its bill of exceptions is not legally before the appellate court. G. C. and S. F. Ry. Co. v. Holliday, 65 Tex. 512.

Gooding, C. J. Sloan, J., and Wells, J., concur.

OPINION

The facts are stated in the opinion.

GOODING, C. J.

The record in this case shows that the judgment was rendered on the tenth day of December, 1888; that the statement of facts and motion for a new trial were filed on the thirty-first day of January, 1889; that the statement of facts was agreed upon by counsel, and approved by the court, on the thirtieth day of January, 1889. The motion for a new trial is in the bill of exceptions, and nowhere else appears on the record. The statute expressly provides that a motion for a new trial shall be made within two days after rendition of judgment. Par. 836, Rev. Stats. 1887. The judgment having been rendered on the tenth day of December, and the motion for a new trial filed on the thirty-first day of January, it comes after the time fixed by the statute. The record does not disclose any reason why this motion was not filed in the statutory time. We must assume, therefore, that there was no good reason, and that the filing of the motion thereafter was not authorized by the statute. We cannot, therefore, consider the motion for a new trial, unless the fact that it is set out in the bill of exceptions places it before this court. The record shows by the clerk's entry that the motion for a new trial was overruled February 4, 1890, and notice of appeal filed on that day. The record contains this entry "Comes now the defendant, by H. N. Alexander, its attorney, and on motion leave is granted to file bill of exceptions nunc pro tunc as of February 6 1890." And this further entry, on same day: "And thereafter, on the nineteenth day of February, 1890, nunc pro tunc February 6, 1890, the defendant filed its bill of exceptions in words as follows, to wit." Then follows the bill of exceptions. The motion for a new trial is set out in this bill of exceptions. That is the bill of exceptions before this court for its consideration. It will be remembered that the motion for a new...