Tooele Improvement Co. v. Hoffman

McOABTY, C. J. 1 We are met at the threshold of this appeal by a motion filed by respondent to strike the bill of exceptions on the ground that the draft thereof was not prepared and served on respondent within thirty days after the service of notice of the entry of judgment as provided by Comp. Laws 1907, section 3286. The notice of the entry of judgment was served on respondent October 2, 1912. No motion for a new trial was filed in the cause. A draft of the prepared bill of exceptions was served on respondent January 25, 1913, three months and twenty-three days after the service of notice on respondent of the entry of judgment. Section 3286, supra, provides that a bill of exceptions may be prepared and served within thirty days after the service of notice on the opposite party of the entry of judgment. [536] Section 332.9 provides that the time for “the preparation, service, filing, or presentment of bills of exceptions, or of amendments thereto . . . may be extended, upon good cause shown, by the court in which the action is pending or by a judge thereof.” The record shows that “no additional time to prepare and serve a bill of exceptions was granted to ■defendant (appellant) by the court or by the judge.” On February 3, 1913, defendant moved the court to relieve him from his “failure to . . . get extension of time in which to serve bill of exceptions herein and to settle, notwithstanding such failure, the bill of exceptions,” on the ground that '“said failure to serve the same within the time limited was due to the impossibility of procuring the transcript of the testimony prior to the 23d day of January, A. D. 1913.” The motion was supported by affidavit of counsel for defendant in which it was alleged that the failure to prepare and serve bill of exceptions in time was due to his (counsel’s) inability to procure a transcript of the reporter’s notes of the evidence and proceedings within the time prescribed by •section 3286, and the failure of counsel in inadvertently failing to get an order of court extending the time in which to prepare and serve bill of exceptions. The court, over timely ■objections made by plaintiff, made an order that “the defendant be relieved from failure to serve and settle bill of exceptions in time.” Plaintiff excepted to the ruling of the •court in that regard. On March 10, 1913, the bill of exceptions was allowed and settled by the court. Respondent, in a cross-assignment of errors, presents the ruling of the court relieving defendant from his “failure to serve and settle bill of exceptions in time” to this court for review. This court has repeatedly held that while the district court may, before the statutory period for serving a bill of exceptions has elapsed, extend the time “upon good cause shown,” as provided in section 3329, it is without authority to grant such extension if, at the time the application is made, the statutory time for service of the bill has fully expired. Butter v. Lamson, 29 Utah, 439, 82 Pac. 473; Bryant v. Kunkel, 32 Utah, 377, 90 Pac. 1079; Warnock Ins. Agency [537] v. Peterson Inv. Co., 35 Utah, 542, 101 Pac. 699; Metz v. Jackson, 43 Utah, 496, 136 Pac. 784. On authority of these-cases, which we think were correctly decided, the motion to strike the bill of exceptions is sustained. No claim is made that the judgment is not responsive to the pleadings, or that it is not supported by the findings of fact and conclusions of law. The judgment therefore must be, and the same hereby is, affirmed. Respondent to recover costs. STPAUP and PRICE, JL, concur.