Anderson v. Halthusen Mercantile Co.

HOWELL, District Judge. Tbis case is before tbe court on an appeal from an order of tbe trial court granting a motion for a nonsuit herein, and dismissing tbe case, and from an order of said court denying a motion for a new trial. Tbe motion for a nonsuit was granted, and tbe case dismissed on June 10, 1901. Tbe motion for a new trial was' denied May 18, 1903. Tbe notice of appeal from tbe order granting tbe motion for a nonsuit and denying tbe motion for a new trial was served and filed January 6, 1905. It is not contended by counsel for tbe appellant that tbe appeal herein was taken within tbe statutory time, but they insist that tbe respondent bas waived its right [33] to take advantage of the expiration of tbe time by reason of the following stipulation, which was entered into between counsel for the respective parties and dated December 31, 1904, the same being appended to the transcript herein: “This proposed bill of exceptions has been in our possession since it was served upon us, to wit, July 14, 1903, to enable us to prepare amendments thereto, and then agreed with plaintiff’s attorneys that they should not lose their right to have the bill settled while it was in our possession, and they may now have the bill settled, and no advantage taken by reason of it not having been settled whatever, and plaintiff may prosecute his appeal thereafter if he desires.” Opposing counsel are not agreed as to the proper interpretation to be given this instrument, counsel for appellant claiming that it should be construed as a waiver of the right to insist on the appeal being taken- within six months, as required by the statute, and counsel for respondent insisting that it simply goes to the extent of preventing them taking any advantage of the fact that the bill of exceptions was not settled within the time allowed by law. Although the contention of counsel for the respondent, as to the meaning of the stipulation, seems the most reasonable, we do not consider it necessary to determine its precise effect, for the reason that, conceding it goes to the entire extent claimed by counsel for the appellant, it can, in our opinion, avail him nothing. Section 3301, Revised Statutes 1898, provides, as follows: “An appeal may be taken within six months from the entry of judgment or order appealed from.” Section 3329, Revised Statutes 1898, provides as follows: “When an act to be done, as provided in this Code, relates to the pleadings in the action, or the undertaking to be filed, or the justification of sureties, or the preparation of bills of exceptions or of amendments thereto, or to the service of notices other than of appeal, the time allowed by this Code may be extended, upon good cause shown, by the court in which the action is pending, or a judge thereof.” It was expressly held by this court in Mount v. Simons, 3 Utah 230, 5 Pac. 563, that an appeal taken after the statutory time had expired was invalid, and should be dismissed. To the same effect is the case of Henderson v. Barnes, 21 Utah 348, 75 Pac. 759. This court has also repeatedly de [34] cided that an appeal taken and perfected witbin six months from the date of overruling a motion for a new trial is in time, and thus by implication held that if more than six months had elapsed it would not be in time. (Snow v. Rich, 22 Utah 123, 61 Pac. 336; Stoll v. Mining Co., 19 Utah, 271, 57 Pac. 295. See, also, Orchard Co. v. Hanley, 15 Utah 506, 50 Pac. 611; Watson v. Mayberry, 15 Utah 265, 49 Pac. 479; Blyth & Fargo v. Swenson, 15 Utah 345, 49 Pac. 1027; Jones v. Insurance Co., 14 Utah 215, 47 Pac. 74; Voorhees v. Manti City, 13 Utah 435, 45 Pac. 564; Hanks v. Matthews, 8 Utah 181, 30 Pac. 504; Cattle Co. v. Murdock, 8 Utah 497, 33 Pac. 136; Brough v. Mighell, 6 Utah 317, 23 Pac. 673.) It was also decided in Brough v. Mighell, supra, that the court could not extend the time limited by statute for taking appeals, and this decision was approved in Cattle Co. v. Murdock, 8 Utah 497, 33 Pac. 136. See, also, Butter v. Lamson (Utah), 82 Pac. 473. It is difficult indeed to conceive how the decision could have been otherwise under our statute, for section 3711, Comp. Laws Utah 1888, was in force when Brough v. Mighell was before the court, and that paragraph, so far as the question herein involved is concerned, is the same as section 3329 of the Revised Statutes of 1898. Although the precise question in this case, that is, whether or not a stipulation of the parties can extend the time in which to appeal, has never been before the court, yet it naturally follows that inasmuch as the Legislature has fixed the time, and withheld the power from the courts to enlarge it, the parties themselves cannot do so. The filing and service of the notice of appeal within the time required by law is essential to clothe this court with jurisdiction to adjudicate whatever questions are properly raised by the appeal. . Such is the overwhelming weight of authority. See 2 Cyc., pp. 802, 803, note 86. See, also, Cent. Dig., Tit. “Appeal and Error,” section 1293. Inasmuch as the court below had jurisdiction of the parties and of the subject-matter of the action, this court would have had also, if the notice of appeal had been served and filed in time, but it has no jurisdiction to determine matters herein on appeal after the period fixed by statute has elapsed, and of course consent, by way of stipulation of counsel, made in behalf of the parties, or otherwise, cannot confer jurisdiction when, otherwise, there would [35] have been none. (Davidson v. Munsey, 27 Utah 87, 74 Pac. 431; State v. Mortensen, 26 Utah 312, 73 Pac. 562, 633.) The notice of appeal herein, then, not having been served and filed within the period allowed by law, this court has at this time no jurisdiction either of the parties or the subject-matter of the action. The appeal must therefore be dismissed, at plaintiffs costs, and the judgment affirmed. It is so ordered. BABTCH, C. J., and McCAPTY, J., concur.