106 P. 1 | Idaho | 1909
— This is an appeal from an order of the judge at chambers, refusing to settle a statement on motion for a new trial, and the refusal of the judge to pass upon the motion for a new trial.
Judgment was entered on June 7, 1906. Notice of motion for a new trial was given and the order was obtained from the court or judge extending the time for filing the proposed statement on motion for a new trial. A transcript of the evidence was ordered immediately after the entry of the judgment, and the court stenographer, because of the pressure of the court work, was unable to get out said transcript and deliver the same to the attorneys for the appellant until January 23, 1907. Counsel for appellant served their proposed statement' on the attorneys for the plaintiff on June 9, 1907, and filed the same with the clerk of the court on July 1, 1907. The attorneys for the plaintiff applied to the attorneys for the appellant for an extension of time in which to propose their amendments to said statement, which amendments were served upon the attorneys of the appellant some time during the fall of 1907. Shortly thereafter counsel for the respective parties agreed upon such amendments and the amendments so agreed upon were incorporated in the statement. The statement was then delivered to the clerk of the court for the judge thereof. During the summer of 1907, and beginning of 1908, the district court was occupied for a considerable portion of the time with the trial of other cases. On the first day of the December term, 1908, the attorneys for the appellant called the matter up in court and asked for
It appears from the record that an order was made on August 28, 1906, extending the time ninety days for the preparation and service of said proposed statement. It appears also that on the 28th of November, another application was made for an extension of the time in which to prepare and serve said proposed statement, and ninety days was granted on that application. This application was based on the stipulation of respective counsel. On February 27, 1907, by stipulation of counsel, another ninety days was granted for the preparation and service of a proposed bill of exceptions. On May 27, 1907, on stipulation of respective counsel, the court extended the time in which to prepare and serve a bill of exceptions or statement on motion for a new trial, until July 1, 1907.
Appellant contends that the action of the court in the proceedings for a new trial and refusal to settle and allow the statement was error. It will be observed from the foregoing statement of facts that the court extended the time for preparing and serving the statement on August 28th for ninety days. Excluding the 28th of August, when the order was made, the ninety days would have expired on the 26th of November; hence said order, made on November 28, 1906, was not made until two days after the time had expired under the order of August 28th, in which to prepare a statement. But it is contended by counsel for appellant that the respondent waived his right to insist that said order of the 28th was
We cannot agree with that contention. While it is true counsel for respondent made several stipulations for extension of time, those extensions were no doubt made on the presumption or theory that the application for an extension was made before the court lost jurisdiction of the matter, and we do not think that the attorneys for respondent intended to stipulate jurisdiction where the jurisdiction had been lost by failure to make application in the proper time and when, in fact, no jurisdiction existed to make the order. While it is true the record was open to respondent’s counsel and they might have examined it and ascertained whether or not the
In Bank of Commerce v. Baldwin, 14 Ida. 75, 93 Pac. 504, 17 L. R. A., N. S., 676, the court had under consideration a question similar to the one here, and the court, speaking through Mr. Chief Justice Ailshie, said:
“When the statement was presented for settlement, on' motion of the adverse party, the same was stricken from .the files, and the court refused to settle it on the ground that it had not been presented in time and that the court had lost' jurisdiction to settle or allow it. The action of the court was clearly correct and in conformity with the repeated decisions of this court.’'
In Swartz v. Davis, 9 Ida. 238, 74 Pac. 800, the court held that the judge or court had no power to extend the time for preparing and serving a statement on motion for a new trial after the time for the settlement had expired. As bearing upon this question, see Lydon v. Piper, 5 Ida. 541, 51 Pac. 101; Hoehnan v. New York Drygoods Co., 8 Ida. 66, 67 Pac. 796; Sandstrom v. Smith, 11 Ida. 779, 84 Pac. 1060.
The judgment appealed from must therefore be affirmed, and it is so ordered, with costs in favor of respondent.