Penn Placer Mining Co. v. Schreiner

14 Mont. 121 | Mont. | 1894

Harwood, J.

This case stands on motion to strike from the record the statement on motion for new trial: 1. Because the statement on motion for new trial was not served within the time prescribed by the statute, or within the period of time provided.by order of court. This alleged ground is based upon the respondent’s construction of the order of court extending time. They insist that where the court, by order, extends time to a date named, as “to December 2d,” the period of extension expires at the close of the day preceding the date named in the order, in this instance at the close of December 1st, because December 1st reaches to December 2d. We think the contemplation of such an order of court, or stipulation providing time to a certain date, within which to do an act in court practice, such as t’lie filing or service of a paper,"includes the date named, as the close of the period prescribed. 2. It is contended that service of statement on motion for new trial was not made in time, although made within the period stated in the order of court extending: time to file statement. The order extending time reads: “For filing statement on motion for new trial”; and it is contended that this order did not suffice to extend the time for service of said statement. The record shows that service of statement was waived by telegram from respondent’s counsel to appellants’ counsel, on the first day of December—the day the order of the court was made extending time to “file statement.” This telegram was made part of the record by amendment, allowed by the trial court, accompanying the objections to the settlement and allowance of the statement, on the alleged ground that it was not served in time.

It is further urged that the statement on motion for new trial should be disregarded by this court, because the evidence is not entirely reduced to narrative form; and that the amendments are not engrossed in the record, but occupy a separate position at the close of the statement on motion for new trial. These amendments embody several instructions given to the jury by the court—the special findings of the jury; some estimates used by counsel in argument of the case, which the jury was, by agreement of counsel, allowed to take to the jury-room; some record entries in relation to notice of motion for new trial, extending the time for preparation of statement, etc., together with objections to the settlement and allowance of statement inserted in the record, and made part thereof, by way of amendment allowed by the court. All these amendments comprise additional matter, complete and intelligible in itself, and not of the character referred to in the case of Gallatin Canal Co. v. Lay, 10 Mont. 528. Apparently no greater convenience or certainty would result from these amendments being in one part of the statement instead of another.

As to the objection that the testimony is not all in narrative form, other records have offended more grievously on that score than this one, and yet have been tolerated by this court. This record may be subject to some criticism on the ground that the testimony is not all reduced to narrative, but it is well understood that there are examples of testimony very difficult to reduce to narrative form without losing or gaining some force thereby, and where such is the case this court has been in the habit of indulging the statement of evidence by question and answer, as given on the trial. It is somewhat hard to draw the line between the cases which should, and those which should not, be dismissed on this particular ground. It is a ground which the court should, and will, act upon of its own motion. And when admonition is unheeded, and the abuse exceeds a just indulgence extended to litigants, unaware of the improper practice, rather than to counsel, who are the real offenders, we shall then apply the pruning-knife of dismissal, to sever from this appellate jurisdiction such records as unwieldy, cumbrous, and improper engraftments thereon. From our examination of this record we do not consider it one which should be thus dealt with. The motion to strike out the statement, in our opinion, should be overruled. An order will be entered accordingly.

Motion overruled.

Pemberton, C. J., concurs.