82 P. 473 | Utah | 1905
These two cases were consolidated, tried together, and both are 'attempted to be brought here for review on an appeal from the judgments.
These judgments must be affirmed for the following reasons: Section 3301, Revised Statutes 1898, provides:
“An appeal may be taken within six months from the entry of the judgment or order appealed from.”
Section 3302 provides:
“The judgment roll and bill of exceptions, if there be one, shall constitute the record on appeal to the Supreme Court.”
Upon the appeal being perfected, filing and serving notice and undertaking, the clerk of the court from which the appeal is taken, at the expense .of the appellant, shall forthwith transmit to the Supreme Court the papers constituting the record on appeal. Section 3317 provides:
“If the appellant shall fail to cause such papers to be transmitted and filed in the Supreme Court within thirty days after the perfecting 0f the appeal, the appeal may be dismissed on motion of the respondent.”
A rule of this court also provides that the transcript of record shall be filed in this court within thirty days after such appeal shall have been perfected unless further time has been given by this court, or a justice thereof, on good cause shown by affidavit. The record discloses that these judgments were entered October 21, 1903. On December 24, 1903, a motion for a new trial was 'overruled, and notice
This motion must prevail. By our refusal to grant the first motion to dismiss, we have excused appellant for everything by way of delay that existed prior to and at the time of the filing of the first motion, but he cannot be excused forever. Notwithstanding he obtained the reporter’s notes on September 29, 1904, and notwithstanding the bill of exceptions is only a transcript of the evidence, as furnished by the reporter, .which under our Code is permissible, yet we find the bill of exceptions was not settled until December 13, 1904, and the transcript on appeal not filed until December 23, 1904. In other words, the time from the filing of the first motion to dismiss until the filing of the transcript with this court was nearly three months. This delay is wholly unaccounted for, and no explanation thereof is at all attempted, or any reason offered why.the bill could not have been settled long prior to December 13, 1904, and the transcript filed with this court long prior to December 23, 1904. When we
There is a clear reason, however, why the court was without jurisdiction when the bill of exceptions was settled by him on the 13th day of December, 1904. These judgments were entered October 21, 1903, a motion for a new trial was overruled December 24, 1903, and a notice of such overruling served December 29, 1903. Under the provisions of the statute, appellant, if desirous of having settled a bill of exceptions, was required to prepare and serve his proposed bill within thirty days from service of notice overruling the motion for new trial. While the district court has power to extend this time, when application for extension is made before the time has expired, he is without authority to grant
Tbe judgments of tbe court below are affirmed, with costs.