162 P. 63 | Utah | 1916
The plaintiff, as the administrator of the estate of Mary P. G-. McKean, deceased, brought this action to set aside certain conveyances of real property and transfers of personal property which were made by the deceased during her lifetime to the defendants, who are her children, and which conveyances and transfers, it is alleged in the complaint, were procured by the defendants by deception and undue influence practiced upon the deceased.
The record discloses that the findings of fact, conclusions •of law, and judgment were signed and filed on the 8th day of May, 1915; that notice of the signing and filing of the findings and judgment was served and filed on the 10th day of May following; that the notice of appeal was served' and filed on the 8th day oif November, 1915; that6 on the 26th day of November, 1915, appellants’ proposed bill of exceptions was served on respondent’s counsel; that counsel refused to. accept or acknowledge service thereof upon the ground
“Service of the foregoing proposed draft of the defendants’ bill of exceptions admitted this 18th day of December, 1915, but not waiving any rights whatsoever, as the same is and was not served in time. ’ ’
Counsel suggested no amendments to the proposed bill, and the district judge, on the 30th day of December, 1915, allowed and signed the same as defendants’ bill of exceptions in this ease. No extensions of time to prepare and serve the bill of exceptions had either been asked for or granted.
Comp. Laws 1907, Section 3286, among other things, provides that any party to an action who desires to have his exceptions taken at the trial allowed and settled may, within 30 days from the entry of judgment, if the case is tried to a jury, or within 30 days after notice upon him of the entry of judgment if tried to the court, pi’epare and serve upon the adverse party his proposed bill of exceptions. Such proposed bill may then be amended and allowed and signed by the judge as provided in said section. Under our statute, the time for preparing and serving a bill of exceptions may, however, for good cause shown, be extended from time to time. In case a party desires to have the time extended, however, he must, at some time before the thirty days •have elapsed, apjdy to the district court or the judge thereof for an extension, and in case an extension has been granted, and a further extension is desired, he must, before the extension has expired, apply to the judge or court for a further extension of time. This court has held in an unbroken line of decisions that in case the party who desires an extension of time fails to apply for such extension at some time before the statutory time, or any extension thereof, has expired, the district court or judge is without power thereafter to allow, settle and sign a bill of exceptions except under the provisions of Comp. Laws 1907, Section 3005. Butter v. Lamson, 29 Utah 439, 82 Pac. 473; Metz v. Jackson, 43 Utah 496, 136 Pac. 784; Bryant v. Kunkel, 32 Utah 379, 90
As appears from the foregoing statement, the notice of the signing and filing of the findings and judgment was duly served on appellants’ counsel on the 10th day of May, 1915, and the first attempt to serve the proposed bill of exceptions was made on the 26th day of November following, or more than six months after the notice of judgment was served. It also appears that no extension of time was either asked or granted, and that service of the proposed bill was admitted conditionally and without waiving any rights by respondent’s counsel on the 15th day of December, 1915. If therefore we should deny the motion to strike, we would have to overrule all of the foregoing cases, and not only that, but we would have to overrule a large number of similar decisions which have not been officially reported. Appellants’ counsel, however, contend that this case comes within .Section 3005, supra, as explained in Tooele Improvement Co. v. Hoffman. In that ease we held that in case a party, for some good cause, fails to obtain an extension of time to prepare and serve his proposed bill of exceptions, he may make an application to the district court, or judge thereof, in which he may set forth the reasons why he did not "prepare and serve his proposed bill of exceptions within time, and why he did not obtain an extension of time within which to do so, and the district court, or the judge, in case he finds that the appellant’s failure was due to some excusable cause or neglect, may settle, allow and sign the proposed bill, notwithstanding the delay. The applicant must, however, make a proper showing of facts from which the court is authorized to find that the delay and failure to act timely on his part is excusable, and the court, or judge, must make findings of that fact which, at the instance of the opposing party, may be reviewed by this court. The district court, or judge, under Section 3005, may not assume arbitrary power and allow and sign a bill of exceptions out of time, but can do so only when good and sufficient cause is made to appear. In this
“That it has been some years since affiant in person has been charged with the taking and perfection of an appeal, such matters havipg been committed to other members of the firm of which affiant is a member.
“That affiant, knowing that the law permitted Mm six months after judgment within which to take the imtiai step to appeal, namely, the filing of a notice, and, for the time, over-looMng the requirement that the trouble and expense (in tMs case $240) of procuring and serving a bill of exceptions must be undertaken months before it is necessary to serve a notice of appeal, or, in the alternative, that the discretion of the trial judge should be invoked in order to secure such extensions of time as might be necessary to permit a party to determine whether or not to appeal or to procure bis record, inadvertently mistook and overlooked the time witMn wMch the service of the bill should be made, affiant believing that such service and filing would be timely if made so as to permit the transcript to be -filed in the Supreme Court witMn thirty days after the perfection of the bill as provided in rule II of the Supreme Court rules.
“Affiant further states that he was induced to believe he was moving witMn the proper time because of the physical impossibility in tMs case, and in all other cases where the transcript is voluminous and the appeal is on the entire record, of procuring and serving a draft of the bill of exceptions within tMrty days after notice of judgment.”
The motion to strike must therefore prevail.
The assignment that there is a misjoinder of parties and of causes of action cannot be sustained.
The judgment for costs against Ruth McKean is therefore reversed, and in all other respects the judgment of the lower