10 Utah 253 | Utah | 1894
This is an appeal from an order made by the Third District Court dismissing and denying defendants’ motion for a new trial. From the bill of exceptions in the record it appears that the cause was tried before J. H. Harris, as referee, to whom it had been referred by order of the court. The referee made and filed his report in favor of plaintiff, on the 9th of May, 1893, and on the same day judgment was entered in pursuance thereof, and notice of the judgment and decision was served on defendants’ attorneys. On the 18th of May, 1893, and within 10 days after judgment, defendants served and filed their notice of intention to move for a new trial, upon a statement to be prepared. The 28th of May, when the 10 days allowed by statute for settling statement would expire, fell on Sun
No question is made but that all the proceedings subsequent to the filing of the order of Judge’Bartch on May 30th are regular and in time, if that order is valid and operative. The plaintiff claims, and the court below held, that this order of Judge Bartch is invalid, and has no force or effect whatever, because it was not filed within the time limited by statute. The statute relating to the matter in controversy (2 Comp. Laws, § 3402, subd. 3) reads as follows: ecIf the motion is to be made on a statement of
The case of Clark v. Strouse, arose under the practice act of Nevada, which was taken from the former practice act of California, and is identical with the statute considered in the case of Campbell v. Jones, before referred to. In the case of Clark v. Strouse the court held that the statement must not only be fn writing, and signed by the judge, but must also be filed with the clerk in the case before the time expires; and the case of Campbell v. Jones is referred to. In neither of these cases is there any argument or reasoning on the question. The statute under which these cases were decided required that the statement, when prepared, should be filed with the clerk,
In the case of Swift v. Canovan, 47 Cal. 86, which arose under a code of civil procedure from which our code is substantially taken, the court held that an order made by a judge out of court, extending the time for filing an answer, was not invalid because it was not filed, and, in deciding the case, said: “ The more correct practice certainly is to file or serve the order extending the time to answer, but we are not aware of any provisions of law requiring it to be filed or served.” We think this is the correct rule in relation to an order extending the time to prepare and serve statement on motion for a new trial. Any other construction would be too narrow, and, in many cases, work great injustice. The provisions of the code relative to orders extending the time for filing answers, taken together, are substantially like the statute under consideration. Hayne, New Trials & App. p. 413, § 147, states the rule that the order should be in writing and signed, but says nothing about it being filed. We think the court erred in dismissing and denying the motion for a new trial; and the order appealed from is reversed and set aside, with costs to the appellants, and the cause remanded, with instructions to the court below to proceed