Swartz v. Davis , 9 Idaho 238 ( 1903 )

SULLIVAN", C. J.

A motion was made to strike appellant’s bill of exceptions from the transcript on the ground that said bill was neither served nor settled within the time allowed by the stipulation of respective counsel or the time allowed by the court or judge.

It appears from the transcript that this case came on for trial on the twentieth day of September, 1902, and a stipulation was entered into by respective counsel that each might have sixty days after the filing of the judgment within which to prepare and serve his bill of exceptions or statement of the case.

The judgment was filed September 22, 1902. Application was made by counsel for appellant on the nineteenth day of November, 1902, for an extension of the time in which to prepare and serve a bill of exceptions, or statement, and the judge granted an extension of thirty days in addition to the sixty days covered by said stipulation. The ninety days included in the stipulation and order of the judge expired on the twenty-first day of December, 1902.

No further extension was asked for or granted until the twenty-sixth day of December, 1902, on which date an application was made and on it the judge granted an extension of time for twenty days, provided, however, that the time already granted had not expired. As the time had already expired no extension was given by the last order. After the time has expired for serving and filing a proposed statement or bill of exceptions the judges or court had no 'power to extend the time.

The motion to strike said hill of' exceptions and statement from the transcript must he granted.

The statement on motion for a new trial and bill of exceptions having been' stricken from the transcript, the case is left on the appeal from the judgment on the judgment-roll alone. And ■ as no error appears oh the’ face thereof, the judgment is sustained. ' .

Costs of this appeal are awarded to the respondent.

Stockslager, J., concurs. Ailshie, J., having been of counsel in the court below, did not' sit in the case. ' " ...