Utah Idaho Development Co. v. Jensen Et Ux.

MOFFAT, Justice. November 7, 1925, plaintiff brought an action against the defendants in the state of Idaho upon foreclosure of a mortgage. A decree was entered, the property sold, and a deficiency judgment entered upon the sheriff’s return by the clerk of the court as provided in the decree. This suit is to recover upon that judgment. An answer pleading settlement and a counterclaim charging wrongful conversion of water stock were filed. The case was tried to the court sitting without a jury, and judgment rendered for the plaintiff. Defendants appeal. We are met by three motions to dismiss the appeal. In view of the situation, it is not necessary to further state the issues. Respondent moves to dismiss appellants’ appeal on the ground: (1) That the transcript of the record was not filed in the Supreme Court within 30 days after the appeal was perfected, nor within any further time given by the court, or a justice thereof as required by Comp. Laws Utah 1917, § 7009, and rules 2 and 3 of this court; (2) that neither the abstract nor the assignments of error were filed within the time required by rules 6, 9, and 26 of this court, nor within any valid extension thereof; arid (3) that appellants failed to file briefs *111 as prescribed by the rules of this court. We need not discuss the second and third grounds of the motion, for the reason the identical delinquency complained of by respondent on the first ground for dismissal has been determined in a number of cases by this court. Comp. Laws Utah 1917, § 7009, reads: “If the appellant shall fail to canse such papers to be transmitted and filed in the supreme court within thirty days after the perfecting of the appeal, the appeal may be dismissed on motion of the respondent.” So much of rule 2 of this court as applies to the filing of the transcript on appeal provides: “In all cases where an appeal shall be perfected, a transcript of the record shall be filed in this court within thirty days after such appeal shall have been perfected, unless further time is granted by the court, or a justice thereof, on good cause shown by affidavit.” And rule 3 provides: “If the transcript be not filed within the time prescribed or allowed, the appeal may be dismissed on motion during the first week of the term without notice, and at any time afterwards upon notice. A cause so dismissed without notice may be restored during the same term on notice of five days to the adverse party, for good cause shown, but unless so restored the dismissal shall be final.” Notice of motion to dismiss was duly served and filed. The motion is argued at length and authorities cited in respondent’s brief. No cause is shown, and no reply is made by appellants to respondent’s motion. An affidavit was filed by counsel for appellants asking to have the transcript filed as of the 13th day of March, 1931. The record discloses that March 13th is the day the transcript was filed in this court. It also appears from the record that the bill of exceptions was settled on the 10th day of December, 1930. The notice of and undertaking on appeal (appeal perfected) were filed with the clerk of the trial court on the 15th day of January, 1931, and the certified transcript was delivered to appellants’ counsel for filing in the Supreme Court on the *112 9th day of February, 1931, or 5 days before the time it should have been filed in this court. The transcript was held by counsel and not filed until March 13th, or 27 days after the time for filing had expired. No extension of time was asked or granted, and, when the motion to dismiss was interposed, appellants submitted an affidavit of counsel stating in substance that affiant was otherwise engaged and inadvertently failed, and knew of no reason for an early hearing. The affidavit offers no sufficient cause or excuse, in fact, if the motion made were granted, it would not constitute relief.' The relief asked by appellant was to file the transcript nunc pro tunc, as of March 13, 1931. This is the date the transcript was actually filed. Proper and just rules of procedure, religiously adhered to, are necessary. Expedition in the disposition of the work of the courts can only be accomplished by application of the limitations provided by law and the rules of the courts made in pursuance thereof. “There are certain rules of procedure and of limitation touching appeals that must be enforced more or less rigorously for the purpose of establishing order in this court, and for the additional purposes of compelling progress in litigation and relieving interested parties from uncertainty and anxiety.” Gee v. Smith, 52 Utah 602, 176 P. 620. The statute and the rules invoked by respondent’s motion to dismiss belong to this class. It may further be said as in substance it was said in the case just cited that, had an application for an extension of time been made, within which to file the transcript, in advance of the expiration of the time limited by the statute and rules of the court, to any justice of the court, and any reasonable cause for such extension shown, no doubt an extension would have been granted. It may be that, if the filing had been a few days late, and any reasonable and sufficient cause for the delay shown, relief may have been ganted, and the failure excused. Such is the rule. Such is likewise the spirit and purpose behind it. The various aspects thereof are illustrated and *113 applied in the following cases: Howell v. Clark, 16 Utah 410, 52 P. 631, 632, transcript filed 16 days after the 30 days had expired; no extension of time was given; the appeal was dismissed. Butter v. Lamson, 29 Utah 439, 82 P. 473, transcript filed 60 days after settlement after an unexplained 45 days after it was obtained. Gee v. Smith, supra, transcript filed in time, fee not paid for 3 months and 7 days thereafter, held transcript not filed till fee was paid; appeal dismissed. Swetin v. Magleby, 54 Utah 260, 180 P. 177, appeal perfected April 25, 1918, transcript filed October 19, 1918, time elapsed nearly 6 months; appeal dismissed. Zion’s Savings Bank & Trust Co. v. Spratley, 61 Utah 502, 214 P. 1119. Section 7009, Comp. Laws Utah 1917, and rules 2 and 3 of the Supreme Court referred to and appeal dismissed; transcript 5 months and 2 days late. American Trust Co. of St. Louis v. Millard County Drainage Dist. No. 3, 75 Utah 309, 284 P. 1000, transcript filed 69 days after expiration of 30-day period had expired for perfecting of appeal; statutes and cases cited; appeal dismissed. While the rule is different in criminal cases as to the time allowed and as to what constitutes the perfecting of an appeal, the cases of State v. Grisolio, 49 Utah 195, 162 P. 613, and State v. Marasco (Utah) 17 P. (2d) 919, discuss the principles, and the latter case points out a necessary modification of rule 2 of this court in so far as it applies to criminal cases. It is clear that the appellants have not complied with the rules of this court nor with the statute in presenting their appeal to this court, and, having offered no reasonable excuse for not having done so, the respondent also having maintained prejudice thereby, the motion to dismiss the appeal should be granted and the appeal dismissed. Such is the order. Costs to respondent. FOLLAND, J., concurs. ELIAS HANSEN, J., concurs in result.