Sandstrom v. Smith, 84 P. 1060

Sandstrom v. Smith

84 P. 1060 | Idaho | 1906

Lead Opinion

AILSHIE, J.-

— -This is an appeal from an order made by the district judge refusing to grant appellant an extension of time in which to prepare and present his bill of exceptions and statement on motion for new trial and on appeal. Notice of rendition and entry of judgment in the case was served on the attorney for plaintiff and appellant on the nineteenth day of December, 1904. Thereafter, the plaintiff applied to the trial judge for an extension of time for the preparation and presentation of a bill of exceptions, and the judge thereupon made his order, which is as follows: “It is therefore ordered and adjudged that said plaintiff do have sixty days from this date within which to prepare and file his bill of exceptions and file a motion in this case as provided in this case. ’ ’ This order is not dated, but was filed by the clerk of the court on December 23, 1904. The plaintiff thereafter applied to the district, judge for a further extension of thirty days for the same purpose, and the petition therefor appears to have been subscribed and sworn to by the plaintiff on the twenty-fifth day of February, 1905, and the same was duly verified by his attorney on the following day. A further affidavit in support thereof was made by plaintiff’s attorney. This application, and the affidavits in support thereof, appear to have been filed by the clerk of the district court on February 28, 1905. The *782attorneys for the defendants filed objections to this petition, and thereupon the attorney for plaintiff filed what is designated an “amendment to petition for extension of timh.” After a hearing on the application and objections thereto, the trial judge made and entered an order refusing and denying the application on the grounds that the time, under the previous order, had expired prior to the last application for extension, and that he was therefore without authority of law to grant further time. The appellant contends that he should have been granted further time under the provisions of section 4229 of the Revised Statutes, on the ground of surprise and excusable neglect. Under the statute, section 4430 of the Revised Statutes, the appellant was entitled to ten days from and after the nineteenth day of December in which to prepare, serve and present his bill of exceptions, and if the sixty days ’ extension should run from December 29th, this last application would have been in time, and appellant contends that such was his understanding, and that he did not intend that the judge’s order granting the extension should be filed until the date on which his statutory time would expire, namely, December 29th.

He further claims and shows by his affidavit that he intended to hold this order until that date and then file it, but that by some mistake or inadvertence the order was placed among the other papers in the case and was filed by the clerk without direction or authority from anyone. This is the sum of the whole contention in the ease. The order granting the extension clearly provides that the sixty days shall commence to run from the date of making the order. We are not informed as to when this order was actually made by the trial judge. The presumption therefore follows, in the absence of any other showing, that it was made on the date it was filed. It is quite clear that it was not made after that date. If the judge had intended this order to commence to run from any other date than that on which he made it, he would or should have so designated. On the other hand, the proper place for orders made by a court or the judge thereof is among the files of the court in the particular ease. Indeed, the practice of *783securing orders and then retaining or withholding them from the files is one that cannot be commended and should not be encouraged.

The showing made by appellant’s counsel as to his intention and understanding with reference to the order filed December 23 d, is not such a showing as will bring him within the provisions of section 4229, supra. Under the showing made in this case, the sixty days clearly began to run on December 23d, and the time had therefore expired prior to plaintiff’s application for a further extension, and the court was without jurisdiction or authority to make the order. (Swartz v. Davis, 9 Idaho, 238, 74 Pac. 800; Brown v. Hanley, 3 Idaho, 219, 28 Pac. 425; Hoehnan v. New York Dry Goods Co., 8 Idaho, 66, 67 Pac. 796.)

The order appealed from will be affirmed. Costs awarded in favor of respondents.

Stockslager, C. J., and Sullivan, J., concur.

Rehearing

SULLIVAN, J.

— A petition for rehearing has been filed in this ease, and counsel seems to place reliance on a stipulation in writing signed by opposing counsel granting an extension of the time in which to prepare and serve a proposed statement or bill of exceptions. Counsel contends that the attorneys for respondent had power to bind their clients in that stipulation. The trouble with this contention is that the stipulation signed by counsel cuts no figure in the case whatever. That was a stipulation granting the appellant ten days in which to prepare and serve a proposed statement or bill of exceptions. Counsel for appellant had, under the statute, ten days for that purpose, which time expired on the twenty-ninth day of December, 1904. Counsel thereafter procured an order of the court extending that time for sixty days from the twenty-third day of December, 1904. Counsel for appellant attempts to explain the order of the court and contends that it was intended to date from December 29th, instead of the 23d, 1904. The order speaks for itself and extends the time *784for sixty days from the 23 d. The stipulation signed by respective counsel has no part whatever in the decision of this case. If counsel for appellant has made a mistake, that may be unfortunate, but under the facts of this ease we cannot give him relief, and the petition for rehearing is denied.

Stockslager, C. J., and Ailshie, J., concur.

Rehearing

ON REHEARING.