Juckett v. Fargo Mercantile Co.

Haney, J. In these three actions, which were consolidated in the court below, respondents moved to strike out the bill of exceptions or statement of the case and appellants’ abstract. There is no difference between a statement and bill of exceptions in form or substance, except that the former follows a notice of intention to move for a "new trial. People v. Crane, 60 Cal. 279. In the cases at bar there was a notice of intention to move for a new trial upon “a bill of exceptions to be hereafter settled,” followed by service of proposed exceptions; therefore the portion of the record sought to bo excluded by defendants’ motion should be termed “a statement of the case.” 352 The contention that the statement was not settled within the time or in the manner required by the statute is untenable. It appears from an affidavit indorsed on the statement that a copy of the ‘ ‘proposed bill of exceptions’ ’ was personally served on one of the respondents’ attorneys at Hot Springs, in this state, January 22, 1903. The statement, as proposed and as settled, contains these recitals: “No notice of the entry of said decision, findings, conclusions, and judgment, or either thereof, was ever served upon the said defendants in .said two actions first above entitled, or either of them, or upon the plaintiff Hattie M. Fargo. That thereafter, and within the time allowed by law, the said defendants in said two actions first above entitled and the plaintiff Hattie M. Fargo duly served upon plaintiffs’ attorneys the following notice. ” (Here follows notice of intention.) The certificate of the trial judge is as follows: “The foregoing bill of exceptions having been duly proposed and served within the time allowed by law, and no amendments thereto having been proposed, served, or filed, and the said bill of exceptions being this day presented to the undersigned, the judge of the above-entitled court, who heard and tried said actions, and I being satisfied that the said bill of exceptions as heard and now presented is a full, true, and correct bill of exceptions, containing all the testimony and evidence introduced or offered at the trial of said actions, also all objections made or taken by said parties, the said plaintiffs and the said defendants, and each of them, upon the trial of said actions, together with the rulings and orders of the court thereon, and the exceptions of said parties, or either of them, thereto, the said bill of'exceptions is hereby by me allowed, approved, signed, and sealed, and hereby by me made a part of the judgment roll and 353 record in said actions. Done at Rapid City, in the said circuit and state, this 13th day of February, A. D. 1903. [Signed] Levi McGee, Judge.” These provisions are found in the statute: ‘‘If the motion is to be made upon a statement, of the case, the moving party must within twenty days after service of the notice, or such furcher 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, on the adverse party. If such proposed statement be ' not agreed to by the adverse party, he must within twenty 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 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; and thereupon the same proceedings for the settlement of the statement shall be taken by the parties, -and clerk, and judge, as are required for the settlement of bills of exception by section §96. If no amendments are served within the time designated, or, if servéd, are allowed, the proposed statement and amendments, if any, may be presented to the judge for settlement, without notice to the adverse party. ” Rev. Code Giv. Proc. §‘303, subd. 3. By failing to serve amendments, respondents agreed to the statement as proposed by appellants. Because no amendments were served, the proposed statement was properly presented for settlement without ■ notice. By 354 reason of its recitals, respondents are precluded from asserting that notice of intention was not served within due time, and the judge’s certificate, to the effect that the statement was served within the time allowed by law, after notice of intention, being uncontradicted, no vulid reasons appear to exist for. striking the statement from the record. This conclusion is not affected by the fact that more than two years may have elapsed between the'entry of judgment and settlement of the statement. Exceptions may be settled after an appeal has been perfected. Hedlun v. Holy Terror Mining Co., 14 S. D. 369, 85 N. W. 861; Implement Co. v. Porteous, 7 S. D. 34, 63 N. W. 155; Severson v. Ins. Co., 3 S. D. 412, 53 N. W. 860. If the statement was served within the required time after notice of intention to move for a new trial, it is immaterial when, the appeal was taken. On November 25, 1903, it was stipulated in writing that appellant should have 15 days in which to serve and file an abstract and 90 days .in which to serve and file a brief. Appellants’abstract was filed December 22, 1903, their brief February 23, 1904, and respondents’ additional abstract March 15, 1904. In view.of the stipulation and circumstances attending the preparation and printing of appellants’ abstract, disclosed by their affidavits, it is clear that whatever delay may have occurred was excusable. Moreover, though failure to serve and file an abstract within the required time may be ground for dismissing the appeal, it affords no reason for striking an abstract from the record. Rule 27. Respondents’ motion is denied, with leave to serve and file a brief within 30 days.