Sorg v. Weels

McCOY, J\ In this 'ease respondent has brought' on, by means of orders to show cause, three motions as follows: First. T01 dismiss the appeal on the ground that the statement of facts contained in appellant’s printed brief does not set out the pleadings or sufficient of the evidence tO' inform the court or respondent of the matters and things sought to be reviewed on appeal. Second. To strike from the record the settled bill of exceptions on the ground that the same was not settled within the time nor in the. manner prescribed by law. Third. In case the court denies both the foregoing motions that respondent be given time in which to serve reply brief. [x] The motion to dismiss appeal should be denied. That appellant has failed to make sufficient statement of fact in his brief with reference to pleadings and evidence may result in leaving appellant in a helpless condition in the appellate court,. but it does not constitute ground for dismissing the appeal. If the appellate court, when considering the case on the merits, deems appellánt’s statement of fact wholly insufficient, it will affirm the judgment from which the appeal was taken. Sanford v. Helgerson, 141 N. W. 390. [2] The-motion to strike the bill of exceptions should be granted. It appears that verdict was rendered in this case on November 22, 1910, and judgment, entered thereon February 23, 1911, and motion for new trial denied.on May 26, 1911, and on said last-mentioned date plaintiff was allowed 'by the court 60 days in which to settle bill' of exceptions. O11 the 21st day of February, 1913, plaintiff served notice of appeal, and also on the same date filed a stenographer’s transcript of the testimony and notice of the filing thereof was given to respondent, and on March 15, 1913, the court made an ex parte order, settling said tran [437] script as the bill of exceptions, and the same was then transmitted to the clerk of the Supreme Court with the appeal record. At the time the motion for new trial was 'denied, chapter 15, Laws of 1911, had not gone into effect, but the same went into effect before the expiration of the 60 days allowed plaintiff in which to settle bill of exceptions. If we consider the settlement of this bill of exceptions governed by section 296, Rev. Civ. Code of Pr., without reference to the amendment thereof by said chapter 15, Laws of 1911, then case case of McGillicuddy v. Morris, 7 S. D. 592, 65 N. W. 14, is directly in point. Section 296, as amended by said chapter 15, provides that, when a -party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within 30 days after the entry of judgment, if the case were tried by a jury,* or such further time as the court may allow, procure from the official stenographer a full and complete . transcript of the testimony and file the same with the clerk'of the circuit court, who shall thereupon give notice to respective parties of the filing of the same; and, if no amendments or corrections thereto be proposed within 10 days thereafter, the court may settle the same. The only time ever allowed to plaintiff which might, under any circumstances, be construed as an allowance of time in which to procure and file a stenographer’s transcript of the evidence expired on July 26, 191Í. -As a matter of fact, plaintiff never at any time made application for time, under the provisions of chapter 15, in which to /procure and file such transcript. _ If we consider that chapter 15 repealed the prior provisions of sections 296, as to settling bills of exception, and that there was no saving' clause therein as to bills of exception then in process of settlement, and that plaintiff’s rights to settle a bill of exceptions were carried over and preserved by the 60-day allowance, then plaintiff’s time under the new .amended law would begin to run on the isf day of July, 1911, the time of the going into effect of the amendment. Under ariy reasonable construction of the provisions of section 296, either as it originally existed or as amended by said chapter 15, plaintiffs permitted their time to procure and file a transcript of the evidence to expire, and it was at least 18 months after such expiration of time that plaintiff procured and.filed such transcript. ■We are of the opinion that plaintiff had no right or authority to file the same at such time, or that' the court then possessed any au [438] thority or jurisdiction to settle such transcript as the bill of exceptions, without first having made an order, on good cause shown therefor, -extending such time. The rule established by the Mc-Gillicuddy Case is still applicable in this case. [3] After the time, as fixed by statute, or as further allowed by the' court, for the procurement and filing of the transcript has been permitted to expire, a party can then revive such time only by proceeding under section 306, Code 'Civ. Pr., on motion, supported by affidavit, showing good cause therefor, and on at least six days’ notice to the opposite -party, at which time the opposite party, if he -so desires, may oppose and contest the question, by counter affidavit, of good -cause shown. Sections 548, 551, 552, Code Civ. Pr. These sections of the Code are all still in force and applicable to this kind of procedure. [4] The adverse party -may waive the fixing of a new time either by express stipulation or by subsequent action. If the adverse party appeared and asked for a correction of the bill of .exceptions, or. proposed amendments théreto, or -served a reply brief based on -such bill of exceptions or like action, it might constitute a waiver. But respondent has done nothing to that effect in this case. It is contended by appellant that, by reason of the fact that respondent did not, within ten days after notice of the filing of such transcript with the clerk of the circuit court, appear and -object to the same in some way, he (has now waived the right to object thereto. We are of the opinion this contention is not tenable for the reason that the notice given by the clerk with whom it is filed is that the parties in interest may correct or amend such bill, but not move to quash the same entirely for jurisdictional reasons. [5] Had the 'bill of exceptions been'settled before the service of notice of appeal, it might have been better practice to have made the motion to -strike the -same from the record in the lower court; but, as the bill in this case was not settled until after the appeal to this court, it was proper to move to strike the same in the appellate court. [6] S-ome -contention has been raised that the bill of exceptions -cannot, under any circumstances, be settled after the expiration of the time to appeal, but we'are of the opinion that this contention is also not tenable. Juckett v. Fargo Mercantile Co., 18 [439] S. D. 347, 100 N. W. 742. The time limit within which an appeal may be taken is one thing; the time limit within which a bill of exceptions, or appeal record, may be settled is, another. Thev are independent -of each other. The motion to strike from the records the bill of -exceptions may be and is hereby granted. Respondent is given 30 days within which to serve respondent’s brief.