95 P. 1059 | Idaho | 1908
On July 11, 1906, the plaintiff recovered a judgment against the defendant in the district court for Bingham county. A statement on motion for a new trial was afterward prepared and settled by the trial judge and filed in said court on November 6, 1907. An order was made and filed by the trial judge on November 9, 1907, overruling the defendant’s motion for a new trial. A notice of appeal from the judgment, and from the order overruling the motion for a new trial, was served and filed in said court on November 21, 1907. The transcript on appeal was filed in this court on
Respondent also filed a second motion to dismiss the appeal from the order overruling the motion for a new trial, for the reason that the motion for a new trial was not passed upon within one year from the rendition of the judgment, and no satisfactory showing has been made accounting for such delay. The judgment was entered on July 11, 1906. The statement was settled by the trial court on November 6, 1907. The motion for a new trial was presented to the court some time between November 6 and November 9, 1907, and upon the latter date, about sixteen months after the rendition of said judgment, was overruled.
In explanation of the delay, counsel for appellant file an affidavit of Wm. A. Lee, one of appellant’s counsel, in which it is stated that the reporter furnished a transcript of the evidence about October 15, 1906; that counsel for appellant prepared its statement or bill of exceptions, and served the same on counsel for respondent on November 21st, and thereupon counsel for respondent was given thirty days to prepare amendments thereto; that the amendments were prepared and served about the 21st of December, and consisted, as shown in the affidavit of counsel for appellant, of about twenty-three pages of closely typewritten matter, consisting of 238 separate proposed amendments, which counsel for appellant were unwilling to accept, and on the 31st day of December returned the same to the clerk for delivery to the judge for settlement, and advised the court that counsel for
In opposition to this affidavit John W. Jones, counsel for respondent, files an affidavit, in which he alleges that the proposed amendments and the statement were filed prior to January 1, 1907; that during the time from January 1, 1907, to July 11, 1907, affiant repeatedly urged upon counsel for appellant the necessity of an early disposition of the motion for new trial in this action, and that counsel for plaintiff held himself in readiness at all times to take up and dispose of said matter, and, upon one occasion, William A. Lee, of counsel for appellant, and affiant considered together the right of respondent to prevail with reference to a large number of said proposed amendments to the statement, and agreed upon the allowance of certain amendments, and thereafter the said William A. Lee left the matter of the disposition of the re-
This latter affidavit is not contradicted in any way by appellant. The record then discloses that the amendments to the proposed statement consisted of 238 separate proposed amendments. This, of itself, indicates that counsel for appellant may have overlooked a careful preparation of the proposed statement. Of course, this court cannot say whether or not these proposed amendments to the statement were proper and justified or not, but, in this connection, it may serve a purpose to suggest that counsel, in preparing statements or bills of exceptions, should attempt earnestly to embrace therein everything and every part of the testimony and record required to properly present to the appellate court the question under contest, and not leave this labor for respondent. This causes delay. Counsel were unable to agree as to the amendments, and the statement and proposed amendments were lodged with the clerk of the district court for the judge on December 31, 1906. Counsel for appellant seems to have permitted matters to remain in this condition until some time in February, 1907, when counsel attended a session of the district court of Bingham county, for the purpose of having the statement settled, but that the court was engaged in the trial of jury cases and was unable to settle the same at that time. The same fact was stated with reference to another effort in May. At both of these visits the trial court was engaged in the trial of cases and unable to settle the same.
It is rather strange that counsel for appellant became diligent only at times when the trial court was engaged in other
Rev. Stat., sec. 4442, provides:
“The application for a new trial shall be heard at the earliest practicable period after notice of the motion, if the motion is to be heard upon the minutes of the court, and in other cases, after the affidavits, bill of exceptions, or statement, as the case may be, are filed, and may be brought to a hear-' ing upon motion of either party.”
Rev. Stat., see. 4441, provides that:
“The party intending to move for a new trial must, within ten days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk and serve upon the adverse party a notice of his intention, designating the grounds upon which the motion will be made, ’ ’ etc.
Under the statute, where a motion for a new trial is to be heard on a statement, the moving party must serve the proposed statement on the adverse party, and if the same is not agreed to, the latter must, within a certain time, serve his proposed amendments. If the amendments are adopted, the statement is engrossed accordingly. If not adopted, the moving party must present the statement and amendments to the judge. It is the duty of the judge to fix a time to settle the statement after the same and the amendments proposed have been filed with the clerk. If he should neglect or refuse to do so, the party desiring the statement settled may apply to this court and have the bill settled, under the provisions of see. 4432, Rev. Stat.; see, also, Dernham v. Lieuallen, 4 Ida. 528, 43 Pac. 74.
In the present ease, the proposed statement was served, and also the amendments, and there the proceedings end for ten months. It was the appellant’s duty, who was prosecuting the appeal, to have the statement settled in a reasonable time, and in the manner provided by the statute; and, in the
"While the statute fixes no time within which a motion for a new trial must be heard, yet the statute does require that notice of intention to move for a new trial shall be served within ten days after the decision of the court, and that the application for a new trial shall be heard at the earliest practicable period after the notice of motion. This contemplates that the party intending to move for a new trial shall, with diligence, prosecute such motion. The fact that judgment was rendered in July, 1906, and the statement was not settled until November 6, 1907, does not show diligence on the part of the appellant to bring about a hearing upon his motion for a new trial, and fails to show that the appellant is prosecuting the appeal in good faith. (McCrea v. McGrew, 9 Ida. 382, 75 Pac. 67.) The statute contemplates that a party against whom a judgment has been rendered, who desires to have the same reviewed in the appellate court, shall prosecute the appeal with diligence, in order that the same may be speedily settled and litigation ended. (McCrea v. McGrew, 9 Ida. 382, 75 Pac. 67.) If it develops, in an effort to secure the settlement of a statement that the fault for the delay is with the trial judge, the appellant is afforded a complete remedy by the statute; but, if counsel for appellant presents a defective or insufficient statement, and imposes upon the respondent the necessity of preparing practically a new statement, and imposes upon the trial court the duty of going through the proposed statement and amendments and drafting a new statement, this fact alone shows lack of diligence and good faith in prosecuting such appeal, in the absence of a showing by affidavit or otherwise that counsel has exercised reasonable diligence in an effort to have such statement settled within a rea
After this motion was argued and submitted, and the court deeided the matter orally, Richards & Haga, appearing as counsel for appellant, filed a motion, asking this court to vacate the former order dismissing the appeal and to reinstate said case, and filed an additional affidavit of William A. Lee, and also an affidavit of J. H. Richards. An examination of these affidavits, however, does not change the mind of this court or show that the appellant has prosecuted this action with that diligence contemplated and required by the statute.
The motion to dismiss the appeal from the order denying a new trial is sustained and the motion to reinstate the appeal is also denied. Costs awarded to respondent.