142 N.W. 1130 | S.D. | 1913
The above cause is before' us upon the return of an order to show cause requiring the appellant to show cause, if any there -be, why the bill of exceptions or statement of the case settled by the trial judge should not be stricken from the record, and that part of appellant's brief quoting the contents of such settled -bill or statement be stricken from such brief.
There is a clear distinction between this case and the Clark Implement Co. Cose, or any of the other cases wherein this court has held that written notice w'as essential to start the- running of such a statute, in that in this case the appellant, being the party who received the written findings, conclusions, and judgment from the trial court and filed the same in the office of the clerk of such trial court, has clearly waived any right to receive a written notice of the decision of the trial court. The law never requires a needless act, and no possible benefit could flow to appellant -by the receiving of a formal notice of'this decision. It is therefore clear that the statutory time -for settling of the bill or statement commenced to run as against this appellant immediately upon his receiving and filing the findings, conclusions, and judgment; and the trial court, having made no order extending the time for the settling of such bill or statement, had lost jurisdiction to settle the same at the time it undertook so to do; and respondent’s application to have such settled bill or statement stricken from the records must be and is granted.