Higgins v. Mahoney

By the Court, Wallace, C. J.: J. The judgment dismissing the action was entered April 22, 1873. No bill of exceptions was presented to the judge of the court below at that time, as provided by section 649 of the Code of Civil Procedure, nor within thirty days thereafter, as provided by section 650.

The bill of exceptions in support of the appeal from the judgment was presented and settled June 2, 1873—some of the respondents “objecting on the ground that the same is presented too late.” We cannot, in view of this objection, consider the exceptions set forth in the bill of exceptions.

The right of the appellant to present a bill of exceptions after the entry of judgment, is limited in point of time to the period of thirty days. After the expiration of that period, unless further time had been in the meantime obtained, the [446]right to present the bill oí exceptions for settlement is taken away. If, therefore, the respondents, objecting to the settlement of the bill of exceptions, rely upon the lapse of the period limited by the statute, it becomes the duty of the appellant, in answer to the objection, to incorporate into the bill the matter, if any, going to excuse his apparent delay; otherwise the exceptions, though settled, cannot be considered here.

2. The motion of August 8, to set aside the judgment of April 22, was correctly denied. The remedy of the appellant was by appeal from the judgment, and not by motion to set it aside. The motion to set aside the judgment of April 22 was founded upon certain new matter which might have been, but was not, brought to the attention of the court on the hearing of the motion of the counsel for the defendant Josefa de Haro Denniston, for leave to make further service of the summons.

When, at the hearing of the latter motion, the counsel for the plaintiff made a counter motion to dismiss the action, it became the duty of the counsel for the defendants Grisar and Green (who was then present in court), if he intended to resist the motion, to disclose the grounds upon which he relied for that purpose. If the counsel for the last-named defendants intended to rely upon the stipulation of the 29th of August, 1868, as precluding the plaintiff’s counsel from his motion to dismiss the action, the stipulation should have been brought forward then, or an application should then have been made to delay the hearing of the counter motion to dismiss until the stipulation could be brought to the attention of the court.