Doyle v. Gore , 13 Mont. 471 ( 1893 )

Per Curiam.

This case is appealed to this court from the judgment, and from an order of the trial court overruling plaintiff’s motion for a new trial. Certain motions have been interposed by both parties concerning the record on file herein. The first by respondents, suggesting a diminution of the record, and moving this court for an order to supply certain amendments of the statement on motion for new tidal and a bill of exceptions, which respondents claim were omitted in making up the record now on file here. This motion is accompanied by an affidavit setting forth that certain amendments were proposed, and allowed, and ordered to be incorporated in the record by the trial judge, and that a bill of exceptions was also made by respondents, all of which have been omitted from the record. Thereupon respondents’ motion was granted, and, in compliance with the order made, the clerk of the trial court has certified to this court a supplemental record, containing the amendments which appear to have been proposed to the statement on motion for new trial, and allowed by the trial court in the settlement of said statement, and ordered to be incorporated therein; Upon the filing of said suppleméntal transcript, appellant’s counsel interposed a motion'to strike the supplemental record from the files of this court, on the ground that the original statement on motion for new trial contained all the amendments proposed by respondents and allowed by the trial court on the settlement of the statement on motion for new trial. The respondents insist, on the contrary, that the original statement does not contain such amendments, and the certificate of the clerk and judge of the trial court attached to the supplemental record appear to support respondents in this contention.

In our opinion, this motion to strike said supplemental record from the files should be denied. If the amendments in question were incorporated in the original statement on motion for new trial, as appellant contends, the appearance of the same matter in the supplemental record will introduce nothing new, but will show a mere duplication of the matter, and no injury or inconvenience can result to appellant therefrom. While, on the other hand, if any áuch amendments as were allowed by the trial court are omitted from the original statement, as contended by respondents, they should have the benefit of the same in the supplemental record.

The next point for consideration is the motion of respondents to strike from the record the statement on motion for new trial, on the ground that the same was not prepared and served within the time required by statute. It appears from the statement on motion for new trial, as settled and allowed, that the trial closed and judgment was rendered April 21, 1892. Thereupon plaintiff, against whom the judgment was rendered, made and served notice of intention to move for new trial, within the time prescribed by statute, April 26,1892; and the court, on April 28, 1892, on motion of plaintiff, extended the time for preparation and service of statement on motion for new trial thirty days from said date. It further appears from the record that on May 28th, on motion of appellant, the trial ■court again extended the time for preparation and service of said statement, to June 21, 1892; and on June 18, 1892, another order was made by the court, extending the time for the preparation of said statement to June 24,1892. The statement on motion for new trial was served June 23, 1892. These extensions aggregate fifty-eight days. The first order of extension of time recites that the same was made , without the consent, advice, or stipulation of defendants or their counsel.” Nor does it appear that any of the other orders for extension of time were made by consent of respondents or their counsel. Respondents now move this court to strike out said statement, because of this showing that time was extended more than thirty days without consent of- adverse party; relying on § 536, Code of Civil Procedure, which provides that such extension shall not exceed thirty days without consent of adverse party.

The position of respondents must be sustained. The statement on motion for new trial is therefore stricken from the record, leaving the case for consideration of the judgment-roll on the appeal from the judgment.