193 P. 1108 | Utah | 1920
The plaintiff commenced this action to quiet title to a small strip of ground which is specifically described in her' complaint. The complaint is in the usual form in such actions. Defendants in their answer denied the allegations of the complaint, and, in a counterclaim, set up title to the strip in themselves, and asked that the title be quieted in them. The case was tried to the court without a jury. All the issues were found in favor of plaintiff, and a judgment entered quieting the title to the strip of ground in her, and enjoining defendants from interfering therewith, and denying all of defendants’ claims to said strip of ground. Defendants appeal from the judgment.
The plaintiff interposed a motion to strike the bill of exceptions for the reasons: (1) That it was not served on plaintiff, nor on her attorneys, before it was allowed and settled, as provided by our statute (Comp. Laws 1917, § 6969) : and (2) that no notice of its presentation to the
In settling a proposed bill of exceptions it is important that the provisions of the statute be at least substantially complied with. The provision of the statute that the party who proposed to settle a bill of exceptions must, before doing so, serve his proposed bill on his adversary, or his counsel, so that amendments, if any are desired, may be proposed before it is presented to the judge who tried the case for allowance and settlement, is a very important provision, and, unless waived by the adverse party or his counsel, must be complied with. Every party to an action who may be adversely affected by the appeal must be given the opportunity, as provided by our statute, to propose any amendments to the proposed bill of exceptions before it is allowed and settled and finally made a part of the record on appeal.
A motion is also interposed to dismiss the appeal upon the ground that the defendants have not complied with the rules of this court in preparing and filing abstracts, briefs, etc. While it is true that the rules of this court have been violated in several particulars at least, yet, in view
In proceeding to a consideration of the appeal, it is obvious that in view that the bill of exceptions has been stricken there is nothing before us, except the pleadings, the findings of fact, the conclusions of law, and the judgment appealed from. The only question, therefore,
In view of that, the judgment should be, and it accordingly is, affirmed, with costs.