BOWERS v. CHARLESTON HILL NAT. MINES, INC.
Bowers v. Charleston Hill Nat. Mines, Inc.
BOWERS v. CHARLESTON HILL NAT. MINES, INC.
BOWERS v. CHARLESTON HILL NAT. MINES, INC.
No. 2754
January 6, 1927.
251 P. 721.
Thos. A. Brandon, for Appellant.
J. W. Dignan, for Respondent.
OPINION
By the Court,
Ducker, J. :
Respondent has submitted a motion, theretofore noticed, to dismiss the appeal for noncompliance with rule 2 of the rules of the supreme court. The rule reads :
"The transcript of the record on appeal shall be filed within 30 days after the appeal has been perfected and the bill of exceptions, if there be one, has been settled."
Respondent contends that no bill of exceptions was settled by the judge of the lower court, and that, consequently, the time limited by the rule commenced to run, when the appeal was perfected, and had expired some 30 days before the transcript of the record on appeal was filed.
Judgment was rendered in favor of respondent, and appellant made a motion to modify it. The motion was denied. From the judgment and order of the court refusing to modify it, this appeal is taken. The appeal was perfected on July 14, 1926, and the transcript of the record on appeal was filed with the clerk of this court on September 15, 1926. Appellant insists that there is a bill of exceptions in the record and that the delay in filing the transcript of the record on appeal was due to the actions of respondent in filing obj ections in the lower court to the proposed bill of exceptions. The transcript of the record on appeal before us consists of a certified copy of the judgment roll, a transcript of the testimony and proceedings in the lower court certified by the court reporter, certified copies of the notice of motion to modify judgment, objections to findings and conclusions of law,- and motion to amend the proposed findings, decision on motion to modify judgment, objections to findings, and conclusions of law, and -motion to amend and modify proposed findings, and the appeal papers. This, in its entirety, was labeled "Proposed Bill of Exceptions," and was served on respondent and filed with the clerk of the district court on the 20th day of July, 1926. It was, thereafter, on August 21, presented to the judge of the court for settlement. Respondent made written objections to the settlement of the same as a bill of exceptions, on the ground that the same had not been prepared, served, and filed within the time allowed by law, and also moved to strike the whole and certain parts thereof. The objections and motions were regularly heard by the trial court, and on September 9, 1926, its decision was made denying the right of the appellant to have any -bill of exceptions settled upon the ground that the same was not prepared, served, and filed within the time allowed by law. Thereafter, on September 15, 1926, as previously stated, appellant filed the same in this court as the record on appeal.
Without passing upon the merits of appellant's excuse for the delay, we think that it is sufficient to say that respondent has not complied with rule 3, and is therefore in no position to invoke it. He has never presented or filed in this court a certificate of the clerk, as required by said rule 3. Consequently, the motion to dismiss is denied.
Respondent has also moved this court for an order striking from the transcript on appeal herein all papers, documents, and transcripts therein contained, except the judgment roll, the clerk's certificate thereto, the notice of appeal, and the bond on appeal, upon the ground that they are not properly authenticated in the manner provided by law, nor incorporated in any bill of exceptions, proposed, filed, or settled in the manner or within the time required by law. This motion must be granted, except' as to the decision or order of the court refusing to modify the judgment. This, certified by the clerk, and the certified copy of the judgment roll, and the appeal papers constitute the record on appeal, for the reason that there is no bill of exceptions either on appeal from the judgment or order refusing to modify it filed within the time required by law. The transcript of the testimony and proceedings certified by the court reporter which, under the provisions of section 1 of the acts of 1923, pp. 163, 164, could have been filed as a bill of exceptions to have become such, no motion for a new trial having been made, must have been filed not later than 20 days after final j udgment, unless the time therefor had been enlarged. No extension of time was made. Final judgment was rendered on May 20, 1926, and the transcript of the testimony and proceedings was not filed until July 20, 1926. It was therefore filed too late to become a bill of exceptions on appeal from the judgment. It was also filed too late to become a bill of exceptions on appeal from the order refusing to modify the judgment. The trial judge correctly held that the time for filing a bill of exceptions to such- an order is prescribed by section 6 of the act of 1915, pp.164, 165.
Section 1 of this act provides, in part, as follows:
"Any party to an action or special proceeding may, after the filing of the complaint, and before trial, obj ect and except to any ruling, decision, or order made in such action or special proceeding, and, within ten (10) days after such objection and exception, serve and file a bill of exceptions thereto."
Section 6 provides:
"Bills of exception to any action, decision, ruling, or order of the court, after final judgment, shall be prepared, served, allowed, and settled in the. manner and within the time specified in section 1 of this act."
True, section 1 of the act of 1915'has since been repealed by the act of 1923, but section 6 is in full force and effect, and the time is fixed by the latter section for filing bills of exception "to any action, decision, ruling, or order of the court, after final judgment," other than an order determining a motion for a new trial, at 10 days after objection and exception thereto.
An order or decision made in the absence of a party is, by the provisions of section 376 of the civil practice act, as amended by Statutes of 1915, p. 321, deemed to have been excepted to. The decision refusing to modify the judgment was made June 30,- 1926. Consequently, the reporter's transcript of the testimony and proceedings, if intended to be a bill of exceptions on appeal from the order refusing to modify the judgment, was not filed within the time prescribed by said section 6.
Counsel for appellant, in his brief filed on the motion to dismiss, contends that, as to the papers on the record on appeal certified to by the clerk of the trial court, or by the court reporter, there was nothing therein, nor in the entire record, for the trial court to settle or approve; that it was presented to the trial court for any criticism which might be made, and to settle it, if the court desired to do so. It is true that the transcript of the proceedings in the trial court, duly certified by the court reporter, required no settlement by the trial judge. If it had been filed in time, it would constitute a bill of exceptions, by virtue of section 1 of said act of 1923. Counsel's view, however, that the papers in connection with the' decision, refusing to modify the judgment certified by the clerk, became a part of the record on appeal, without having been allowed and settled by the trial judge or by stipulation of the parties, is entirely erroneous. They do not fall within the exceptions made by sections 12 and 14 of the said act of 1915, which provide that certified documents and exhibits may be made a part of the record on appeal. The trial judge refused to settle the certified copies of the papers mentioned as a bill of exceptions because not filed within the time required by section 6 of said act of 1915. The ruling was right.
June 16, 1927.
256 P. 1058.
For the reasons given, the reporter's transcript of the testimony and proceedings and the certified copies of all the papers, in connection with the decision of the trial court refusing to modify judgment, are hereby ordered struck from the record on appeal.
Respondent contends that there are no errors on the face of the judgment roll and has moved to affirm the judgment. This motion will be denied for the reason that we are not inclined to consider the case without further argument by counsel from the standpoint of the record as it now stands in this court. Counsel for appellant has filed his opening brief on the merits; respondent has filed no brief on the merits, pending the decision of the court on these motions. Counsel for respondent may have 15 days after receiving a copy of this decision in which to. file and serve his reply brief, and counsel for appellant 15 days thereafter in which to file and serve closing brief. Thereupon the case may be submitted or orally argued, as counsel may desire.