Kelleher v. Creciat

Belcher, C. — This case was tried by the court, and findings and judgment in favor of the defendant were filed on the eleventh day of June, 1889. On the next day, after the entry of the judgment, a copy of the findings and judgment, and a copy of defendant’s memorandum of costs and disbursements in the action, were delivered to the law clerk of plaintiffs’ attorneys, at their office, and the following indorsement was then and there made by the clerk upon the memorandum of costs; —

“ Received copy of the within memorandum of costs, together with copy of the findings and final decree in the within-mentioned action, after filing of said findings and filing and entry of the decree, this June 12, 1889.

“Wicks & Ward, per C., “Plaintiffs’ Attorneys.”

On the 21st of the same month, the plaintiffs’ attorneys served upon defendant’s attorneys, and filed, a notice of intention to move for a new trial of the action, and [39]that the motion would be made upon a statement of the case to be thereafter prepared and settled.

On the 2d of July, plaintiffs’ attorneys obtained an order for ten days’ extension of time within which to prepare and serve their statement on motion for new trial, and on the 11th of the same month they obtained another order, for an additional extension of twenty days within which to prepare and serve such statement.

No statement on motion for new trial was ever served or filed, and no order extending the time within which to prepare or serve a bill of exceptions was ever obtained or applied for.

On the 9th of August plaintiffs’ attorneys had an order entered dismissing the motion for new trial, and thereafter, on the same day, served on defendant’s attorneys their draught of a bill of exceptions in the action, and a notice of appeal from the judgment, stating therein that “ said appeal is taken on the judgment roll and on bill of exceptions.”

On the 16th of August, defendant’s attorneys served on plaintiffs’ attorneys notice that they would move the court to strike out plaintiffs’ draught of a bill of exceptions, on the ground that the same was not prepared or served within the time required by law, or within any further time allowed by the court or a judge thereof. This motion subsequently came on for hearing, and was denied, and thereupon the judge of the court settled, allowed, and certified the bill as it is presented in the transcript.