Mellan v. Messenger

OPINION By the Court, Coleman, J.: This case is before the court on a motion to dismiss the appeal. • The motion to dismiss is based upon several grounds, one being that objections had been made by the defendant (respondent) to the so-called bill of exceptions in the district court, and that the same had .not been disposed of in that court. We may say here that there is no affidavit accompanying the motion to dismiss, or other showing which we think would justify our granting the motion, so far as *238 it is based upon matters not appearing in the so-called record on appeal. But there is another reason why the motion is not good. Section 2, c. 97, Stats. 1923, provides that no appeal shall be dismissed for any defect or informality in the appellate proceedings until the appellant has been given an opportunity to amend or correct such defect. This is a wholesome provision, and we think it should be construed most liberally. Another ground of the motion is that the so-called bill of exceptions had not been filed with the clerk of the trial court. Inspection thereof shows that it bears what purports to be a notation of its having been duly filed. There is also what purports to be a certificate of the clerk, under the seal of the court, that “the within is the true, original bill of exceptions and record on appeal. * * * There being no showing in support of the respondent’s motion, this ground of objection must fail. The respondent also moves to dismiss the appeal, upon the ground that it was not taken either from the judgment or from the order denying the motion for a new trial within the statutory time. The statute (Stats. 1913, p. 113) provides that an appeal may be taken from a final judgment within six months after the judgment is rendered, and from an order denying a motion for a new trial within 60 days after the order is made and entered in the minutes of the court. The final judgment was rendered on November 24, 1922, and on June 26, 1923, the order denying the motion for a new trial was filed with the clerk of the court. The appeal from both the judgment and the order was taken on September 19, 1923. It is clear that neither appeal was within the time limit fixed by the statute. It is said by counsel for appellant that where the appeal is from both the judgment and the order denying a motion for a new trial, the appellant has six months from the date of the denial of the motion for a new trial in which to appeal, citing Brown v. Evans (C. C.), 18 Fed. 56, in support of the contention. We do not think this case undertakes to *239 construe our statute, nor one similar to it, and, if it did, we would be disposed not to follow it. To give our statute the interpretation contended for would result in giving a party two opportunities to appeal from the judgment, and greatly delay the perfecting of the appeal. It is obvious from a reading of the statute that no such a result can be accomplished, except by a distorted interpretation.- Appellant having failed to take an appeal from both the judgment and the order within the time limit, it follows that both appeals must be dismissed, and that the judgment and order must be affirmed. It is so ordered.