Woodard v. Webster

20 Mont. 279 | Mont. | 1897

Buck, J.

The controlling issue of this appeal is set forth in the following bill of exceptions in the statement on motion for new trial:

‘ ‘Be it remembered, and it is hereby certified as part of the record in said causé and of the statement on motion for a new trial, that on the 26th day of February, 1896, the defendant, by J. W. Stanton, Esq., his counsel, jxresented to the judge of said court for settlement the proposed statement and copy of amendments thereto on motion for anew trial; the plaintiff being represented by W. T. Pigott, Esq., his counsel, who appeared solely for the purpose of objecting to the settlement, upon the grounds hereinafter set out. It is further certified that the proposed statement was duly served by copy on plaintiff, December 21, 1895; that the said proposed amendments were duly served by copy by plaintiff on defendant, December 31, 1895; that the defendant delivered to the clerk of said court, for the judge thereof, December 21, 1895, the said proposed statement, but never at any time delivered to him the said proposed amendments; that in the latter part of January, 1896, the defendant withdrew from the custody of the clerk said proposed statement, for the purpose of comparing the proposed amendments therewith, and that he never returned said proposed statement to the clerk; that the defendant has never incorporated said amendments into said proposed statement; that the proposed statement and. amendments were never presented to the judge of the court until this February 26, 1896; that the defendant has delayed for fifty-seven days to either amend the proposed statement by incorporating the proposed amendments, or present the case for settlement; that neither the court nor its judge has ever made any order enlarging or extending the time in which the defendant might present the proposed statement for settlement. And upon the presentation to the judge of said proposed statement and amendments for settlement, the 26th day of February, 1896, the plaintiff objects to the settlement of the same because of the facts hereinbefore certified, and on the grounds that the defendant has not .complied with the provisions of Subdivision 3 of Section 1173 of the Code of Civil Procedure, in that he did not within ten days, or a reasonable time, after being served with said proposed amendments, amend the proposed statement in accordance with the amendments proposed; and in this: That he did not, within a reasonable time after service of the amendments, present the proposed statement and the amendments to the judge, or deliver the same to the clerk for the judge, for settlement; and objects to the settlement thereof upon the ground that the defendant’s delay of 57 days in presenting the statement and amendments for settlement is unreasonable, and is sufficient to warrant the judge in refusing to settle the same, and as being a failure to prosecute the application for a new trial with diligence. And the judge here does hold, decide, and find that defendant has not incorporated the amendments proposed into the statement proposed, and that he has not presented his proposed statement within a reasonable time from and after service of said amendments, but has delayed the presentation thereof for a period of fifty-seven days, which delay is unreasonable. The judge is, however, of the opinion that, under the decisions of the Supreme Court of this state, he should overrule the objections of plaintiff, and proceed to settle the statement; the plaintiff having and reserving to himself the right to ask that the motion for a new trial, when made, be denied because of the unreasonable delay of defendant in the premises. To which action of the judge in overruling said objection, and in proceeding to settle, and settling, said proposed statement, the plaintiff then and there excepted at the time, and prays that this, his bill of exceptions, be allowed, settled, certified, and signed, and be made part of the record in said cause, and be incorporated into said statement on motion for new trial. All of which is here accordingly done this February 29, 1896, to which day the hearing on said settlement was adjourned. C. H. Benton, Judge.”

After the hearing of the motion for a new trial, the District Court made the following order : ‘ 'The motion of defendant for a new trial in the above-entitled cause coming on to be heard upon a statement of the case settled and allowed, after argument of the case by Stanton & Stanton, in behalf of the defendant, and W. T. Pigot, in behalf of the plaintiff, and due consideration, it is ordered that such motion be, and the same is hereby granted. ’ ’

Appellant contends that the lower court had no right to grant a new trial, by reason of the fact that no proper statement was before it.

Subdivision 3, § 1173, Code of Civil Procedure, is as follows : “If the motion is to be made upon a statement of the case, the moving party must, within ten days after service of the notice or such further time as the court in which the action is pending, or the judge thereof, may allow, prepare a draft of the statement and serve the same, or a copy thereof, upon the adverse party. If such proposed statement be not agreed to by the adverse party, he must, within ten days thereafter, prepare amendments thereto and serve the same, or a copy thereof, upon the moving party. If the amendments be adopted, the statement shall be amended accordingly, and then presented to the judge who tried or heard the cause for settlement, or to be delivered to the clerk of the court for the judge. If not adopted, the proposed statement and amendments shall within ten days thereafter be presented by the moving party to the judge, upon five days’ notice to the adverse party, or delivered to the clerk of the court for the judge. * * *”

Respondent insists that under said statute no time is specified for presenting a statement with accepted amendments for settlement, and that, such being the case, a reasonable time alone is required within which this shall be done. We agree with this. But was the time within which the the statement and amendments were presented to the judge, namely 57 days, a reasonable time ? The lower court expressly held that it was not, and there is absolutely nothing in the record to indicate any excuse for the delay in the presentation of the statement and amendments for settlement. Under these conditions, did the trial judge have a proper statement before him when he granted a new trial? We are of the opinion that he did not. If respondent had offered any excuse for the delay in the presentation of the statement and amendments for settlement, and the trial court had held such excuse sufficient, then this appeal would have a different phase. In the absence of such a showing in the record, it cannot be presumed that there was any excuse or justification for the delay. The lower court should have denied the motion for a new trial.

Respondent urges that by its order granting a new trial the previous conclusion that the delay had been unreasonable was nullified. We cannot assent to this. Having once held that the delay was unreasonable, the objection to the settlement having been properly preserved and presented by appellant when the motion for a new trial was heard, it cannot be inferred that the lower court nullified its previous deliberate holding.

Of course, it was the duty of respondent, if he had accepted, as he claims, the amendments, to incorporate them in the statement when presented for settlement; but we do not deem it necessary to hold that the failure to do so was fatal. What we do hold is that the delay of 57 days in the presentation of the statement and amendments for settlement, unexplained, and found by the ,trial court to be an unreasonable delay, is fatal to respondent in this controversy. (See Connor v. Railroad Co., 101 Cal. 429, 35 Pac. 990.)

All evidence, therefore, is withdrawn from our consideration. The cause is remanded, with directions to the lower court to deny the motion for a new trial.

Reversed and Remanded.

Pemberton, C. J., and Hunt, J., concur.