13 Mont. 471 | Mont. | 1893
Lead Opinion
This case is appealed to this court from the judgment, and from an order of the trial court overruling plaintiff’s motion for a new trial. Certain motions have been interposed by both parties concerning the record on file herein. The first by respondents, suggesting a diminution of the record, and moving this court for an order to supply certain amendments of the statement on motion for new tidal and a bill of exceptions, which respondents claim were omitted in making up the record now on file here. This motion is accompanied by an affidavit setting forth that certain amendments were proposed, and allowed, and ordered to be incorporated in the record by the trial judge, and that a bill of exceptions was also made by respondents, all of which have been omitted from the record. Thereupon respondents’ motion was granted, and, in compliance with the order made, the clerk of the trial court has certified to this court a supplemental record, containing the amendments which appear to have been proposed to the statement on motion for new trial, and allowed by the trial court in the settlement of said statement, and ordered to be incorporated therein; Upon the filing of said suppleméntal transcript, appellant’s counsel interposed a motion'to strike the
In our opinion, this motion to strike said supplemental record from the files should be denied. If the amendments in question were incorporated in the original statement on motion for new trial, as appellant contends, the appearance of the same matter in the supplemental record will introduce nothing new, but will show a mere duplication of the matter, and no injury or inconvenience can result to appellant therefrom. While, on the other hand, if any áuch amendments as were allowed by the trial court are omitted from the original statement, as contended by respondents, they should have the benefit of the same in the supplemental record.
The next point for consideration is the motion of respondents to strike from the record the statement on motion for new trial, on the ground that the same was not prepared and served within the time required by statute. It appears from the statement on motion for new trial, as settled and allowed, that the trial closed and judgment was rendered April 21, 1892. Thereupon plaintiff, against whom the judgment was rendered, made and served notice of intention to move for new trial, within the time prescribed by statute, April 26,1892; and the court, on April 28, 1892, on motion of plaintiff, extended the time for preparation and service of statement on motion for new trial thirty days from said date. It further appears from the record that on May 28th, on motion of appellant, the trial ■court again extended the time for preparation and service of said statement, to June 21, 1892; and on June 18, 1892, another order was made by the court, extending the time for the preparation of said statement to June 24,1892. The statement on motion for new trial was served June 23, 1892. These extensions aggregate fifty-eight days. The first order of extension of time recites that the same was made , without
The position of respondents must be sustained. The statement on motion for new trial is therefore stricken from the record, leaving the case for consideration of the judgment-roll on the appeal from the judgment.
Rehearing
ON REHEARING.
The argument upon rehearing in this case has presented nothing which was not considered on the first hearing. The argument was simply a reiteration of the points passed upon in the original decision.
Counsel call our attention to the case of Moe v. Northern Pac. R. R. Co., 2 N. Dak. 282, as being in point. In that case the North Dakota court had under consideration section 5093 of the Compiled Laws of North Dakota, which is as follows: “The court or judge may upon good cause show in furtherance of justice, extend the time within which any of the acts mentioned in sections 5083 and 5090 may be done, or may, after the time limited therefor has expired, fix another time within which any of such acts may be done.”
From that case counsel quote as follows: “That the authority conferred by said section to extend the time to settle a bill of exceptions and statement after such statutory period for so doing has expired is not absolute, but such discretion is a sound judicial discretion.”
.The decision is not in point, and the industry displayed in counsel’s brief of this case ought to have shown them that the Dakota cause was not applicable; for the Dakota statute does not provide, as does ours, that such extension shall not exceed a given number of days named by the statute, beyond the time prescribed, without consent. (Code Civ. Proc., § 536.)
Counsel again dwell upon section 298, subdivision 3, Code
The whole provision, therefore, is that the statement must be served within ten days, or such further time as is allowed (not exceeding thirty days) unless there be a consent of parties.
It was said in the Dakota case cited above: “ The statutory time limited for giving a notice of intention, and for having bills of exceptions and statement settled, is ordinarily ample for the purpose. It rarely happens that further time is necessary.”
So, in our practice, if the party preparing a statement takes the limit, as he may, of all the periods allowed him by statute, and the extensions by the court, he has ample time in which to prepare his statement. For, to commence with, he has ten days after the verdict of the jury to file and serve his notice of intention. (Code Civ. Proc., § 298.) ■ He then has ten days after the service of this notice to serve his statement. (Code Civ. Proc., § 298, subd. 3.) Then, again, the court or judge may extend the time for thirty days more. This gives an aggregate of fifty days.
Counsel again contend that the record does not disclose that the extensions of time were given in the absence of defendants or their counsel, thus arguing that they were impliedly by the consent of the parties. (Code Civ. Proc., § 536.) But, as noticed in the original decision, the first order of extension appears by the record to have been made “without the consent, advice, or stipulation of defendants or their counsel,” and it does not appear that any of the further extensions were by consent, and the statute provides that, unless they were by consent, they are prohibited. (Code Civ. Proc., § 536.)
It is our opinion that the original decision should remain as the judgment of this court, and it is so ordered.
