Wood v. Tanner

• Decision Date: 21 January 1909
• Citation: 15 Idaho 689,99 P. 123
• Parties: D. C. WOOD, Respondent, v. N. TANNER, Jr., Appellant
• Court: Idaho Supreme Court

99 P. 123

15 Idaho 689

D. C. WOOD, Respondent, v. N. TANNER, Jr., Appellant

Supreme Court of Idaho

January 21, 1909

TRANSCRIPT - BILL OF EXCEPTIONS-TIME OF FILING-MOTION FOR A NEW TRIAL-APPEAL.

1. Where the transcript shows that the bill of exceptions was not settled and filed until after the hearing of the motion for new trial, such bill of exceptions will be stricken from the transcript.

Buckle v. McConaghy, 11 Idaho 533, 83 P. 525, followed and approved.

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. Smith v. American Falls Canal & Power Co., 15 Idaho 89, 95 P. 1059, followed and approved.

(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 damages for breach of the terms of a lease. Judgment for plaintiff. Defendant appeals. Appeal dismissed.

Appeal dismissed. Costs awarded to respondent.

N Tanner, Jr., and Hawley, Puckett & Hawley, for Appellant cite no authorities.

A. M Bowen, for Respondent.

Unless good cause is shown for delay, an appeal from an order denying a new trial will be dismissed upon motion, where such motion for new trial was not brought on for hearing within one year after the rendition of the judgment. (McCrea v McGrew, 9 Idaho 382, 75 P. 67; Smith v. American Falls etc. Co., 15 Idaho 89, 95 P. 1059.)

The statutes of the state contemplate that the motion for a new trial shall not be heard until after the bill of exceptions shall have been settled and filed. (Sec. 4442, Rev. Stat.; Buckle v. McConaghy, 11 Idaho 533, 83 P. 525; Mills v. Dearborn, 82 Cal. 51, 22 P. 1114; Mix v. San Diego etc. R. R., 86 Cal. 235, 24 P. 1027.)

STEWART, J., AILSHIE, J. Ailshie, J., Stewart, J., concurring.

OPINION

STEWART, J.

In this case the respondent recovered a judgment against the appellant for the sum of $ 1,200 for breach of the terms of a lease. The appellant moved for a new trial, which was denied by the trial court, and this appeal is from the order overruling the motion for a new trial.

In this court, respondent moves to strike the bill of exceptions from the transcript and to dismiss the appeal. The first motion must be sustained upon the authority of Buckle v. McConaghy, 11 Idaho 533, 83 P. 525, which is followed and approved. The second motion must be sustained upon the authority of Smith v. American Falls Canal & Power Co., 15 Idaho 89, 95 P. 1059, which is followed and approved. The appeal, therefore, in this case is dismissed. Costs awarded to respondent.

Ailshie, J., concurs.

(March 6, 1909.)

ON PETITION FOR REHEARING.

[99 P. 1053.]

AILSHIE, J.--A petition for rehearing has been filed in this case, and although it is not the practice of this court to entertain petitions for rehearing where an appeal has been dismissed, we have nevertheless examined the petition and have thought it proper and timely to make some observations touching at least one point urged by the petitioner.

In the first place, we must determine this, as well as all other cases, upon the record presented to us. If litigants fail to get all the facts bearing upon the case in the record, it is their misfortune. If we were to judge this matter by the statements contained in the petition and the argument, we would necessarily conclude that the attorney for the respondent, the trial judge and the clerk of the trial court have all contributed so much toward delaying a hearing of this case on appeal that we would be justified in retaining jurisdiction of this case and hearing it on the merits. But the fact remains from the record that the case has dragged along for more than a year without the settlement of the statement and bill of exceptions. It is true that the statute makes it the duty of the trial judge to fix the earliest...