McEwan v. Anderson

FRICK, C. J. In this case plaintiffs obtained a judgment in the district court of Wasatch County, Utah, condemning a small strip of ground owned by the defendant, amounting to 25/100 of an acre, over which to construct an irrigating ditch, and the defendant was awarded judgment for the value of the land taken, and also for damages to her land by reason of the construction of the ditch aforesaid. The defendant appeals from the judgment of condemnation, and also from the judgment awarding damages. At the threshold we are met with a motion by plaintiffs to dismiss the appeal on two grounds: (1) that the pretended [318] bill of exceptions was not settled in time; and (2) that no assignments of error, abstracts, or briefs have been served upon respondent. 1, 2 The record filed in the ease shows the following: Judgment was duly entered May 20, 1916; notice of appeal was served and service admitted October 16, 1916; transcript on appeal was filed in this court November 23, 1916. The objection that the bill of exceptions was not settled in time, which, however, is not a reason for dismissing the appeal, is nevertheless serious, because it involves the power of the district court to settle and allow the bill. The record shows that the judgment was entered May 20, 1916, and notice of entry thereof served on appellant’s counsel on June 1,1916. The bill of exceptions was settled and signed October 14, 1916. The bill was therefore settled four months and fourteen days after notice of entry of judgment was served, which is three months and fourteen days after it should have been settled under our statute. The district judge, in settling the bill of exceptions did so conditionally; that is, the record shows that he settled and allowed it, stating it in his own language, “provided the time for settlement of bill of exceptions has not expired.” In view that no extensions of time to serve, settle, and sign the bill of exceptions were granted, the district court, under all of our decisions, was without jurisdiction or power to settle and allow the bill at the time he signed and allowed it, and hence the bill of exceptions filed in this case is without any force or effect. In view, therefore, that there is no bill of exceptions, all we can do is to examine into the pleadings, findings of fact, and judgment. 3 The findings of fact and conclusions of law are not attached to the transcript, but the original judgment or decree, as before stated, is made a part of it. Moreover the clerk of the district court of Wasatch County, where the case originated and was tried, certifies: “No notice of appeal, nor undertaking on appeal, has been filed in my office. ’ ’ In addition to the foregoing, no assignment of errors, or abstracts, or briefs, have been served or filed by the appel [319] lant, although the transcript on appeal has been on file in this court since November 23, 1916, as before stated. In view of the foregoing state of the record, we have no alternative save to dismiss the appeal. It is therefore ordered that the appeal be, and the same is, dismissed, at appellant’s costs. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.