81 Minn. 467 | Minn. | 1900
The mandate of this court is sought to compel the judge of the Seventh judicial district to settle and allow a proposed case in an action which had been previously tried before that court.
The trial court refused to allow and settle the case upon the ground that the same was not presented in proper time, which re
Questions of considerable importance in practice are suggested by this application, and we have given the subjects presented careful consideration in view thereof. It is provided in C. S. 1894, § 5227, that
“Orders made out of court, and without notice, may be made by any judge of a district court, at any place in the state; but no order to stay proceedings for a longer time than twenty days shall be made, except upon notice to the adverse party.”
If this section is literally interpreted, it would follow that the order extending the stay to September 1 was invalid; but we are not prepared to hold, in view of the uniform practice of the trial bench of this state, as well as upon a fair consideration of the purpose sought by the statute, that such provision applies to this case. We think it must be assumed that the decision was made in court without objection from either party, and that the requirement under the above provision of the statute refers only to an ex parte application
We are also of the opinion that the stay ordered in this case enlarged the time provided for under the terms of G. S. 1894, § 5400, for preparing and serving the proposed case (Gr. S. 1894, § 5219), and that the defendants had the whole time so granted by the court to examine the records, and prepare and serve the same, and it follows that the proposed case was served in time (see Cook v. Finch, 19 Minn. 350 [407]); but we are also of the opinion that it must be held, under the provisions of section 5400, supra, where a case or bill of exceptions is proposed and served upon the adverse party, that the further provisions of this section must be complied with, and that the person upon whom such service is made must,
“Within ten days after such service, propose amendments thereto; and within fifteen days after service of such amendments, the same, with the amendments proposed thereto, shall be presented to the judge or referee who tried the cause, for allowance or settlement and signature, upon a notice of five days; if not presented within the time aforesaid, or such further time as may be stipulated or granted, the same shall be deemed abandoned.”
The interpretation of this statute is not helped by any authority that we have been referred to under statutes of other states, so that we must consider it according to its terms alone, and it appears to us, in passing upon the action of the trial judge of which petitioner complains, that, as a matter of strict legal right, he was not required to enlarge the time to allow and settle the case beyond the period provided therein, viz., twenty-five days from its timely service upon plaintiff. After the ten days for amendments had expired, the failure of the plaintiff to offer such amendments must be deemed an abandonment of an intention on his part to do so (see Cook v. Finch, supra); and it follows that there could be only fifteeri days after such waiver of amendments within which the defendants could have brought on the hearing for settlement before the court. Since this period was not enlarged by stipulation, agreement, or any order of the court, defendants were bound thereby; and their delay in noticing the hearing for a date four days after the fifteen days’ expira
It appears in the return of the district judge that all the material evidence was not included in the proposed case. We 4o not consider the effect of this omission further than to say that it presents another question than any here considered, and applies to the exercise of a sound discretion by the trial judge, who might well exercise the same, under proper considerations, in behalf of a party who, in good faith and within reasonable time, seeks a review of the evidence and rulings of the court at the trial.
For the reasons stated, the writ is denied.