108 P. 336 | Idaho | 1910
This is an original application to this court for a writ of mandate to compel Honorable Fremont Wood, judge of the district court of the third judicial district, to settle a statement on motion for a new trial and appeal, in the ease of Charles N. Maw, plaintiff, v. The Coast Lumber Co., a corporation. That action was brought to recover for injuries alleged to have been sustained by the plaintiff by reason of a defective, unsafe and insecure condition of a certain ripsaw used in the mill of the defendant. The said plaintiff was injured by being struck on the head by a piece of board or timber projected with great force from said ripsaw. That cause was tried by the court with a jury and a verdict was rendered and entered on April 14, 1909, in favor of the plaintiff, for $12,500. Thereafter the
Prior to the time of the service of said papers upon the attorney for the lumber company, he had not made any objections to the adoption of the proposed amendments and had not filed such proposed amendments with the clerk of the court to be presented to the judge for settlement. He alleges, however, in his petition for the writ that he was willing to and did accept all amendments served upon him prior to February 22, 1910, and any objection or refusal he had to the adoption of the same on said date was by reason of the filing and serving upon said attorney of the paper denominated “Additional objections by plaintiff to settlement of defendant’s proposed bill of exceptions,” which he claims was in effect an amendment to the statement. At the time of the hearing, the attorney for the lumber company made some objection to some of the amendments offered. The matter was then heard by the judge on said 22d day of February and on the 24th day of that month, the judge announced orally that he would sustain the objections of counsel for the plaintiff, Maw, to the settlement of said proposed statement. Thereafter, on the 8th day of March, 1910, the attorney for the lumber company duly presented to said judge
Upon that state of facts, this court issued the alternative writ of mandate and upon the return thereof, the defendant filed a general demurrer and answer to said application. 'Thereupon the Coast Lumber Co. filed its general demurrer to the answer of the defendant. Upon that condition of the record, the cause was argued by respective counsel and submitted for decision.
The question arises: Had the court lost jurisdiction to settle the proposed statement ?
The facts above set forth are substantially admitted by the answer of the Honorable District Judge, and the following statement is found in the answer, to wit:
“Neither of the attorneys for plaintiff at any time suggested to me the fixing of a time for the settlement of the .statement, neither did the defendant’s attorney at any time notify me or indicate to me that he had accepted or adopted, or proposed to accept or to adopt, plaintiff’s amendments "to defendant’s proposed statement on motion for a new trial ■or any portion thereof, prior to the hearing on February '22d, 1910, and then offered to accept a part only of the .•amendments proposed; that, at the time and place fixed by me, to wit,- on February 22d, 1910, the matter of settlement of said proposed statement on motion for a new trial came on to be heard before me as judge of said court, N. M. Kuick appearing as attorney for plaintiff and Charles M. Kahn appearing as attorney for defendant. Whereupon Mr. Kuick, ■ of counsel for plaintiff, filed objections to the settlement of ■defendant’s proposed statement on motion for a new trial upon -±he ground that the court had no jurisdiction to settle said*33 proposed statement but had lost jurisdiction to settle the same by reason of facts appearing of record in said cause as follows:
“1. Said proposed bill of exceptions was served on N. M. Ruick, of counsel for plaintiff, on December 10, 1909.
“2. On December 18th, 1909, on the application of counsel for plaintiff, the judge of said court made an order extending the time allowed plaintiff under the statute within which to propose and serve amendments to defendant’s proposed statement on motion for a new trial to and including thirty (30) days from said date.
“3. That, on January 15th, 1910, as shown by the written admission of service by defendant’s attorney indorsed on such proposed amendments, plaintiff served upon counsel for defendant a copy of plaintiff’s proposed amendments to said defendant’s proposed statement on motion for a new trial.
“4. That said amendments were not adopted within the time allowed by the statute for the delivery of said proposed statement and proposed amendments to the clerk of the court for the judge, nor have the same ever been adopted.
“5. That said proposed statement and amendments were not, within ten (10) days after the service of such amendments upon the attorney for defendant, as shown by such admission of service (defendant being the moving party), delivered to the clerk of said court for the judge, nor had the same been so delivered, when said objection was made.
“That, after such objections had been made and presented, counsel for defendant delivered to me, the Judge of said court, the copy theretofore on January 15th, 1910, served upon him of plaintiff’s proposed amendments to defendant’s proposed statement on motion for a new trial and then and there offered to accept a part only of the amendments proposed. This was the first time and occasion on which said amendments had been presented to me. That thereafter in open court on the 24th day of February, 1910, N. M. Ruick being present representing the plaintiff, and C. M. Kahn being present representing the defendant, and, after con*34 sidering the objections offered by plaintiff to the settlement of the proposed statement on motion for a new trial, I sustained such objections upon the ground and by reason of the facts as hereinbefore stated, and then and there declined and refused to settle said proposed statement upon the ground that, as such judge, I had no jurisdiction to settle said proposed statement but had lost jurisdiction to settle the same by reason of the facts as hereinbefore stated, and I then and there directed Mr. Ruick, counsel for plaintiff, to prepare a certificate and order embodying the facts and the ruling of the court and present it for my signature.
“Shortly thereafter and before the order was signed, Mr. Alfred A. Fraser, attorney, not then an attorney of record" in the cause and whom I then for the first time learned was-, interested as an attorney on behalf of defendant, requested me to withhold my signature to the order until he could present a further application for the settlement of the statement, stating that he would have to have time to engross .the statement and include the amendments therein; in compliance with which request, I withheld signing said certificate and order containing the facts and my decision of February 24th, until after the presentation, as hereinafter-referred to, of the engrossed -statement.
“That, on the 28th day of February, 1910, said defendant, Coast Lumber Company, through its attorney, C. M. Kahn, withdrew the original proposed statement on motion for a new trial, which had been handed to me by the clerk of the-court on the 10th day of December, 1909, and also withdrew at the same time the proposed amendments of plaintiff presented to me for settlement on the 22d day of February, 1910.
“That, thereafter, on the 8th day of March, 1910, the defendant appearing by its attorneys, C. M. Kahn and Alfred A. Fraser, presented to me as such judge an engrossed statement on motion for a new trial in said cause for settlement,said engrossed statement consisting of the original proposed statement on motion for a new trial served and filed on the-10th day of December, 1909, with the amendments served*35 on the defendant on the' 15th day of January, 1910, incorporated and embodied therein, with the request from the attorneys for said defendant, that the same be settled as said defendant, Coast Lumber Company’s, statement on motion for a new trial, giving me as a reason that said defendant had then accepted the amendments proposed by plaintiff to said defendant’s statement on motion for new trial, which said application to settle said statement on motion for new trial. I declined and declined to settle said statement, for the reason that the matter had already been disposed of by my decision and order of February 24th, 1910, and that I had no jurisdiction to settle said statement, and for the further reason the said proposed amendments had not been accepted and incorporated in the original statement on motion for a new trial and presented to me, as judge for settlement within, a reasonable time after the service of said amendments.
“Whereupon, I then and there subscribed to a certificate in-writing of the proceedings on the refusal by me as such judge to settle said proposed statement on motion for a new trial in the said cause of Maw, plaintiff, v. Coast Lumber Company, defendant, a copy of which said certificate and order is hereto annexed, marked ‘Defendant Fremont Wood’s Exhibit No. 1,’ and made a part of this answer and showing why I, as judge of said court, should not settle said statement on motion for a new trial.”
It will be observed from the allegations of the answer above-set forth that the judge concluded from the facts presented that he had lost jurisdiction to settle said statement. The-provisions of the statute in regard to the settlement of a statement on motion for a new trial, applicable to this ease, are-found in subd. 3 of sec. 4441 of the Rev. Codes of 1909,. which is as follows:
“If the motion is to be made on a statement of the case, the moving party must, within ten days after service of the-notice, or such further time as the court in which the action is pending, or the judge thereof may allow, prepare a draft of the statement, and serve the same, or a copy thereof, upon the adverse party.
*36 “If such proposed statement be not agreed to by the adverse party, he must, within ten days thereafter, prepare amendments thereto, and serve the same, or a copy thereof, upon the moving party. If the amendments be adopted, the statement shall be amended accordingly and then presented to the judge, who tried or heard the cause, for settlement, or ¡be delivered to the clerk of the court for the judge. If not adopted, the proposed statement and amendments shall, within ten days thereafter, be by the moving party delivered to the clerk of the court for the judge; and thereupon the same proceedings for the settlement of the statement shall be taken by the parties, and clerk and judge, as are required for the settlement of bills of exception by section 4430. If the action was heard by a referee, the same proceedings shall be had for the settlement of the statement by him as are required by that section for the settlement of bills of exception by a referee. If no amendments are served within the time designated, or if served are allowed, the proposed statement and amendments, if any, may be presented to the judge or referee for settlement without notice to the adverse party. When the notice of the motion designates as the ground of the motion the insufficiency of the evidence to -justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient.
“When the notice designates as the ground of the motion errors in law occurring at the trial and excepted to by the moving party, or deemed excepted to, the statement shall specify the particular errors upon which the party will rely. If no such specifications be made, the statement shall be disregarded on the hearing of the motion. It is the duty of the judge or referee in settling the statement, to strike out of it all redundant and useless matter and to make the statement truly represent the ease, notwithstanding the assent of the parties to such redundant or useless matter, or to any inaccurate statement. When settled, the statement shall be signed by the judge or referee, with his certificate to the effect that the same is allowed, and shall then be filed with the clerk.”
From the facts presented, the matter stood on the 22d of February in this condition, and it must be borne in mind that the hearing on that day was not brought on by counsel for either of the parties, but on the suggestion of the judge. Counsel for the adverse party moved to strike certain matter from the proposed statement that was not embodied in his proposed amendments, and also raised other objections to the settlement of the statement. Counsel for the moving party thereupon contested the matter and urged that certain of the amendments proposed ought not to be adopted, and the judge took the view that as counsel for the moving party objected at that time to the adoption of certain amendments, that he had lost jurisdiction to settle said statement, for the reason that the proposed amendments had not been delivered to the clerk for him within ten. days after service of such amendments. But under the law it was too late for counsel for the adverse party to ask for anything additional that would result in the amendment of the statement, and it was also too late for the moving party to insist that he had not adopted all of the amendments, and the court erred in holding that he had lost jurisdiction, and should have directed the proposed statement, with all of the amendments that had been proposed in time, to be engrossed and settled, and after that was done, if said engrossed statement then truly represented the case, it was the judge’s duty to settle it. It is the judge’s duty, however, notwithstanding the assent-of the paxdies to a statement or bill of exceptions, to strike out of it all redundant or useless matter and to make it truly represent the fácts of the case. By the provisions of said statute, it is incumbent upon the judge to strike from a proposed statement all redundant and useless matter, regardless of whether the parties have agreed to it or not, and to insert any matter necessary to make the statement speak the truth. In other words, the judge is not bound to settle a statement if assented to by both parties, unless it speaks the truth and
Counsel for the defendant contends that the action of the judge in this matter was probably predicated upon and was justified by the decision of this court in Hoehnan v. New York Drygoods Co., 8 Ida. 66, 67 Pac. 796. This court held in that case if amendments are proposed to a statement on motion for a new trial and not adopted by the moving party, under the provisions of subd. 3 of see. 4441, Rev. Codes, they must be delivered to the clerk for the judge, and if the amendments be adopted, the statement shall be amended accordingly and then presented to the judge who tried the-case for settlement, or be delivered to the clerk of the court for the judge, and if the time for settlement of the statement has expired and such fact appears from the record, the trial court is without jurisdiction to settle the same. The facts in that case were different from the facts in the case at bar, and it was held under that state of facts that the statutory time for the settlement of the statement had lapsed and the court had no jurisdiction to extend the time. The ■question presented in the case at bar was not presented in that case. Counsel in that case did not adopt the proposed amendments but insisted on having such amendments settled, and set up facts tending to show excusable neglect for having failed to deliver the amendments to the clerk for the judge within ten days after their service. The moving party in that case was not willing and did not consent to the adoption of the proposed amendments, whereas in the ease at bar, it appears that the amendments were adopted.
Counsel also cite Wills v. Kong, 70 Cal. 548, 11 Pac. 781. That case involved the settlement of a statement to which amendments had been proposed. Upon objection by the plaintiff, the judge refused to settle the statement. The defendant thereafter engrossed the statement with the proposed amendments and presented the engrossed statement to the judge for settlement, after the time for service of the statement had passed. It was held under the statute of California that the judge was not authorized by the statute to settle
In Hicks v. Masten, Judge, 101 Cal. 651, 36 Pac. 130, the court had under consideration subd. 3 of said section 659 of the Cal. C. C. P., and it was there held that the written notice required by the provisions of said section of the presentation of a proposed bill of exceptions and the amendments thereto to the judge for settlement is for the benefit of the adverse party and may be waived by him. In open court, when the attorney for the adverse party was present, counsel for the moving party requested the court to fix a time for the settlement of the bill of exceptions, and the judge, from the bench, stated that the bill of exceptions and objections to the settlement and proposed amendments to the bill had been left with him for settlement, and that he would proceed to settle the same on the 12th day of April, 1902, at 10 o’clock at his chambers, and requested both parties to be present. No written notice of the presentation of the proposed bill and amendment was served by the moving party. At the time fixed by the court, the counsel for both parties were present and the adverse party’s attorney then presented written objections to settling the bill, upon two grounds: First, that the proposed bill of exceptions was not prepared and served-in time; second, that the five days’ notice in writing required by the Code had not been given, and on the latter ground the judge refused to settle the bill. The supreme court held under that state of facts that the court erred in not settling the bill, and in that case the court cites the case of Wills v. Kong, supra, and quotes from it as follows: “The judge having once refused to settle the statement, the matter was ended so far as that officer was empowered to settle it.” The court then said: “What was
In Miller v. Hunt, 7 Ida. 486, 63 Pac. 803, this court held that where no amendments were served on the adverse party to a proposed statement within the statutory time, the provisions of see. 4441 do not limit the time within which to present the statement for settlement. Of course, the facts of that case are not the same as the facts in the ease at bar.
In accordance with the conclusion' that we have above reached, the failure of the moving party to deliver the amendments with the proposed statement to the clerk for the-judge within ten days after such amendments are served is in effect an adoption of such amendments, in which case the statement may be settled by the court within a reasonable time. It is therefore ordered that the peremptory writ of mandate do issue against the respondent, commanding him to proceed and settle and certify said statement.
Costs are awarded to the plaintiff.
