51 P. 101 | Idaho | 1897
This proceeding was _ commenced in this court to review an order made by the district court of the second judicial district, in and for Nez Perces county, striking from the files, in the case of J oe Broncheau et ux. against Harry L-ydon, in said district court, a bill of exceptions presented by the said defendant, and settled by the judge of said district court. -To the. writ of certiorari heretofore issued, ihe said district judge has made return, and caused the pro-
After final judgment, a party wbo appeals may employ new counsel or change his attorney without notice. Sections 3999 and 4000 of the Revised Statutes, do not apply to such case. The trial court, or the judge thereof, may, after the appeal is perfected, settle a bill of exceptions; and this court held, in Griffith v. Montandon, 4 Idaho, 75, 35 Pac. 704, that, when an omission or mistake had occurred in the settlement of a bill of exceptions, a resettlement thereof could be had before the district judge before the filing of the transcript in this court. If the mistake consisted in settling a bill of exceptions which should not have been settled, for the reason that it was not proposed and served within the time allowed by law or the stipulation of the parties, we see no reason why it should not be stricken from the files of the action, on proper application made prior to filing the transcript on appeal in this court. Section 4430 of the Revised Statutes, gives any party who desires to have exceptions taken at a trial settled in a bill of exceptions ten days or such further time as the court in which the action is pending, or the judge thereof, may allow, after the verdict of the jury, on receiving notice of the entry of judgment if tried without a jury, in which to propose and serve upon the adverse party his bill of exceptions. It is usual and proper for the parties, when starting in to a trial, to stipulate as to the time in which a bill of exceptions may be proposed and served. But they cannot dispense with the necessity of incorporating the exceptions into a bill of exceptions. The stipulation entered into by the parties below obviated the necessity of giving notice of the entry of the judgment, and, we think, was a waiver of such notice by both parties. It was the duty of the defendant to propose and serve on the adverse party his bill of exceptions within sixty days from the time of entry of the judgment, May 24, 1897, which time expired July 23, 1897. After the time had expired, and without opportunity to the plaintiffs to propose amendments to the bill of exceptions, or object to the settlement thereof, the defendant presented his bill of exceptions to the judge, who, without fixing the time to