101 P. 699 | Utah | 1909
Respondent filed a motion to dismiss the appeal in this case upon tbe ground that the appeal was not taken within the time required by section 3301, Comp. Laws 1007,
Counsel for respondent contends that, as tbe record stood before tbe alleged amendment by inserting therein tbe matters before mentioned, it affirmatively appeared that tbe appeal was not taken in time, and that tbis court thus bad no jurisdiction of tbe appeal; that tbe district court was without power or legal authority to change tbe bill of exceptions so as to make it appear therefrom that a motion for a new trial was* in fact filed and overruled, and hence tbe record still lacks the1 necessary element which confers jurisdiction upon tbis court. Upon the other band, appellant’s counsel contend: (1) That tbe order overruling tbe motion for a new trial, which discloses that a motion for a new trial was made, and when it was ruled on,, constitutes a part of tbe judgment roll, and hence tbe record affirmatively shows that tbe appeál was taken in time; and (2) that if tbis order is not a part of tbe judgment roll, then it is now made a part of tbe bill of exceptions, and hence the record discloses that tbis court has jurisdiction to bear and determine tbe appeal. That tbe no-1 tice of intention to move for a new trial, and what we have termed herein tbe “motion for a new trial,” is not a part of tbe judgment roll, and, if it is intended to make it a part of tbe record on appeal, it must be incorporated
Did the trial court have the authority to amend the bill of exceptions by adding thereto the notice of intention to anove for a new trial and the order overruling the motion, as was done in this case? We have given the matter careful consideration; and, in view of our statutes, and in the light of our former rulings, and of the authorities generally, we have, with some hesitation, if not reluctance, come to the conclusion that the district court was without authority to allow the amendment, and hence the only authentic record before us shows that the appeal was not taken within the time allowed by our statute. If the proposed amendment were no more than to supply a defect or omission in the judgment roll which the clerk is required to prepare and certify, or if the certificate of the judge to the bill of exceptions were ■defective, or if .it were merely to correct some other error not of substance, or mere defect, in either the judgment roll
If the district judge has no legal power or authority to allow and sign a bill of exceptions, except within the time and extensions thereof, as fixed by statute, it would seem to logically follow'that he cannot amend
There are other cases that might be cited, and which are often referred to in support of the right to amend’ a bill of exceptions after the case has gone to the appellate court, but in so far as we have had time to examine them we have not found any that passed upon the precise question involved in this case. Nor is it disclosed in the cases we have examined whether there was a statutory limit within which a bill of exceptions had to be settled and signed or not. In most of the cases cited by us in support of our conclusions it will be found that the decisions are based upon the statutory limitation, and, when the time within which a bill of exceptions may be settled and signed is passed, it is held that the time for adding any matter of substance has likewise passed, and that the trial court is without power to- add thereto, and that the appellate court cannot confer power where none exists as a matter of law. The temptation is always great to permit amendments of this character, since it is usually alleged that they amount to nothing more than adding something which appears from the minutes of the trial court. Our authority, however, is not always co-extensive with our inclinations, and, unless the law authorizes an act to- be done, our desires must yield' to the law, regardless of the consequences.
Erom what has been said it follows that the motion to dismiss the appeal should be, and it accordingly is, granted, and the appeal is dismissed at the cost of appellant. It is so ordered.