Lead Opinion
This court has repeatedly held that while the district court may, before the statutory period for serving a bill of exceptions has elapsed, extend the time “upon good cause shown,” as provided in section 3329, it is without authority to grant such extension if, at the time the application is made, the statutory time for service of the bill has fully expired. Butter v. Lamson, 29 Utah, 439, 82 Pac. 473; Bryant v. Kunkel, 32 Utah, 377, 90 Pac. 1079; Warnock Ins. Agency
No claim is made that the judgment is not responsive to the pleadings, or that it is not supported by the findings of fact and conclusions of law. The judgment therefore must be, and the same hereby is, affirmed. Respondent to recover costs.
Rehearing
ON APPLICATION POR REHEARING.
Appellant has filed a petition for rehearing in which it is insisted that we erred in striking the bill of exceptions.
It was accordingly held that the preparation and settlement of a bill of exceptions is a proceeding in a pending action. It was, however, further held that in case a party failed to prepare and serve a bill of exceptions within the statutory time, and he could show that he failed to do so for the reasons stated in the foregoing quotation from section 3005, his failure constituted a “proceeding taken against him,” and the court could relieve him and make an order allowing the bill of exceptions to be served and filed, although the statutory time had fully elapsed. This ruling] was based upon the decisions in Stonesifer v. Kilburn, 94 Cal. 33, 29 Pac. 332, and Scott v. Glenn, 97 Cal. 513, 32 Pac. 573. In the first case cited from California, the showing was clearly sufficient to invoke the jurisdiction of the trial court, if that court had the power to act under the provision quoted from section 3005, supra, in view that the provision of the California statute is precisely like ours. Without attempting to now show that a bill of exceptions is not, and, in the nature of things, cannot be, classed as a “proceeding taken against” a party, yet, without discussing the question, we are not prepared to say that relief for a failure to prepare and serve a bill of exceptions before the statutory time had elapsed may not be granted under a different provision of section 3005, provided a. timely application and sufficient showing be made upon which the court may base a finding that the application and showing is sufficient to authorize the relief sought. The soundness of the decision in Stonesifer v. Kilburn, supra, has not only been questioned by members of the California court but also by the Supreme Court of Montana. See dissenting opinion in Banta v. Siller, 121 Cal. 418, 53 Pac. 935, and Beach v. Spokane & W. C. R., 21 Mont. 187, 53 Pac. 493.
Where an applicant- proceeds under section 3005, the-court is without jurisdiction to grant relief, unless an application and showing is made to the court upon which it can base findings for or against the application. If the court finds the showing sufficient to authorize the relief sought, it should make an order allowing the proposed bill of excep
In view of the foregoing, we deemed it unnecessary to refer to and distinguish the Morgan Case in the original opinion. In view, however, that counsel have earnestly insisted that the Morgan Case is stare decisis, and that, if it be upheld, the result reached in the present opinion is erroneous, we have deemed it best to enlarge upon our former reasons.
• From what has been said, it follows that the petition for a rehearing should be denied. Such is the order.