Howland v. Howland

STURTEVANT, J. In an action to quiet title the trial court made findings in favor of the plaintiff and from the judgment entered thereon the defendants appealed. In support of their appeal the defendants prepared a purported bill of exceptions. Later they presented the purported bill to the trial court and several hearings were had and numerous arguments were made. The matter was finally continued until February 17, 1936. On that date the further hearing of the settlement of the bill was had and the hearing was ordered off calendar. On the 22d day of June, 1937, the plaintiff served a notice that she would move to terminate proceedings for the settlement of the bill of exceptions. In her notice she designated the grounds on which the motion would be presented, and, among others, “ ... on the grounds that the defendants and appellants by their conduct and actions have in effect abandoned the appeal, have been guilty of unreasonable delay, laches and lack of due diligence, ...” It was also recited that the motion would be based “ . . . upon all of the records and files in said action, upon the affidavits filed concurrently herewith, and upon the defendants’ proposed bill of exceptions ...” Therewith the plaintiff served and filed in support of her intended motion her own affidavit, also the affidavits of Glen Behymer and D. H. Painter, her attorneys. On June 29, 1937, the defendants served a counter-motion to settle the bill of exceptions. The defendants served and filed the affidavit of George Howland in support of their motion and in opposition to the motion of the plaintiff. Later the plaintiff filed the affidavit of D. H. Painter in rebuttal. After hearing said motions on the 2d day of July, 1937, the trial court made an order refusing to settle the bill of exceptions and made an order terminating the proceedings for settlement thereof. From that order the defendants have appealed and have brought up a bill of exceptions.

Both parties make statements outside of the record. Confining our statement of the facts to the record before us it is clear a purported bill of exceptions was filed in the office of the county clerk on October 24, 1935. Except as herein recited no amendments were offered to said proposed [6]bill and no notice was given that the judge would be asked to settle said bill. On January 28, 1936, an order was made that the proposed bill would be settled on February 4, 1936. On the latter date the hearing was continued “ ... to February 17, 1936, at 9 :30 A. M. for defendants to draw a new proposed bill of exceptions. ’ ’ The minutes of the clerk show that on the date last mentioned the hearing was ordered off calendar—to be reset at a later date. Nothing further occurred until the 22d day of June, 1937, and then the proceedings were had mentioned hereinabove in paragraph one.