Craig v. Harrah , 65 Nev. 294 ( 1948 )

OPINION

By the Court,

Horsey, J.:

The .parties will be designated in this opinion as plaintiff and defendant, as they were in the lower court.

The defendant has made application to this court to extend his time within which to file bill of exceptions, and has stated as grounds or reasons for such requested extension “that said bill of exceptions has already been filed, but that opposing counsel has refused to stipulate for extension of time within which to file said bill of exceptions, or that said bill of exceptions may be filed.” The defendant has not stated when he made such request of counsel, nor whether same was made prior to or after his time had expired, nor has he stated whether, upon making such request of opposing counsel, he stated to him any good cause or reason for such extension, and, if so, what such stated cause or reason was. If such request was made before his time expired, and he stated good cause or reason for the requested extension, the usual courtesy extended by members of the Bar to opposing counsel would, ordinarily, suggest compliance, but the law does not require it. In other words, the opposing counsel so requested, unless the circumstances were exceptional, should, and doubtless would, have granted the request, if timely made, but would not legally be required to do so.

If such request were made of opposing counsel after defendant’s time had expired, the granting of such request would have been futile, because, as will hereafter be shown, the statutory time fixed for the filing of bills of exceptions is mandatory and jurisdictional, and neither counsel by stipulation nor the court upon an ex parte application would have the power to extend the time after same had expired.

The facts as disclosed by the record are that the judgment from which defendant has taken his appeal to this court was rendered and filed in the Second judicial district court of the State of Nevada, in and for the County of Washoe, on January 16, 1948. There was no motion for a new trial made by the defendant. In the absence of such motion, defendant’s time, as fixed by N.C.L.Supp.1931-1941, sec. 9385.81 same being sec. 31 of the New Trials and Appeals Act of 1987, Stats, of Nevada 1937, ch. 32, p. 63, within which to serve and file his bill of exceptions was, as stated in said section, “at any time after the filing of the complaint and not later than twenty (20) days after final judgment * * The defendant’s time of “twenty (20) days after final judgment” commenced to run, therefore, upon the expiration of January 16, 1948, the date of the rendition and filing of the final judgment, and ended upon the expiration of February 5, 1948. Defendant’s time was not extended by stipulation of the parties, nor by the district court or judge, nor by any justice of the supreme court, referee, or judicial official, as provided for by sec. 9385.87, N.C.L.Supp.1931-1941, same being sec. 37 of said New Trials and Appeals Act of 1937. Said section provides for such an extension, however, only upon good cause shown.

The defendant filed his bill of exceptions on March 4, 1948, in the office of the clerk of said Second judicial district court, in and for the county of Washoe, which was forty-seven days after judgment, and twenty-seven days after his time to file same had expired.

The defendant has stated, also, in his “affidavit in support of motion for extension of time to file bill of exceptions,” the following:

“Affiant further states that he made application to the Honorable Judge McKnight, Judge of the District Court of the County of Washoe, State of Nevada, in the above entitled matter, the judge who tried the case, for extension of time within which to file said bill of exceptions, and that said Hon. Judge McKnight refused to sign the same, or refused to extend the time aforementioned on the ground that he believed he was without power to do so.”

In referring to such application to Judge McKnight, the defendant, in his “memorandum supporting the application for extension of time within which to file bill of exceptions * * *,” has stated the following:

“These matters were pointed out to the Hon. Judge McKnight in a letter dated March 17, 1948, and a request was made to have the time for filing the bill of exceptions extended. On March 22, 1948, in answer to this request Judge McKnight replied that he was without power to grant such extension. Appellant has since filed an application for a similar order in the Supreme Court of Nevada.”

It is clearly apparent from the above statement by defendant, taken in connection with the record on appeal in the instant case, that his said application to Judge McKnight, by letter dated March 17, 1948, was at least twelve days subsequent to his belated filing of bill of exceptions, on March 4, 1948, and at least forty days after the statutory time within which to serve and file same had expired. Judge McKnight had, upon the expiration of defendant’s statutory time within which to serve and file bill of exceptions, lost jurisdiction to extend the time, and very properly decided that he was without “power” to grant defendant’s request, and so stated to defendant, in his said letter of March 22d.

The mandatory and jurisdictional character, as repeatedly held by this court, of the statutory time within which bills of exceptions must be served and filed will be more fully treated further on in this opinion, in considering defendant’s pending application to this court for such an extension.

The defendant’s bill of exceptions was in two parts or sections, the first part or section being denominated “defendant’s engrossed bill of exceptions,” and the second part or section consisting of the court reporter’s transcript of proceedings, same embracing the proceedings had upon the trial. There was no settlement or allowance of such bill of exceptions at any time, either upon the stipulation of the parties or by the district court or judge, as required by said section 31 of the New Trials and Appeals Act of 1937, N.C.L.Supp.1931-1941, sec. 9385.81; consequently, the bill of exceptions is not authenticated by any “certificate or stipulation to the effect that such bill of exceptions is correct, contains the substance of the proceedings relating to the point or points .involved and has been settled and allowed,” as required by said last-mentioned section of the statute. Subdivision (1) of the second paragraph of said section 31 relieves of the requirement of such settlement and allowance as to the court reporter’s transcript of the proceedings, and provides, in effect, that the court reporter’s certificate thereto may take the place of formal settlement by the court or judge, and of the certificate provided for in the first paragraph of said section. There appears, however, no provision of that statute, or any other statute or law, which would relieve defendant, as to the first part or section of his bill of exceptions, of the requirement of settlement and certification as provided by the above-quoted provision of the first paragraph of said section 31.

Such first part or section of defendant’s bill of exceptions, as before stated, is entitled “defendant’s engrossed bill of exceptions,” and consists of a statement or narrative of certain portions of the evidence, and certain inferences drawn and conclusions made therefrom by the defendant, and has appended thereto merely the certificate of Edward E. Craig, defendant, in propria persona. This falls far short of compliance with the essential requirements of said section 31.

The defendant, by his above-mentioned motion, filed June 10, 1948, for an extension of time within which to file bill of exceptions, and addressed to this court, seeks relief from us at a time more than four months after the expiration, on February 5, 1948, of his statutory time of twenty days allowed for that purpose. To be of any avail to defendant, such relief would necessarily have to relate back to a time prior to the expiration of his statutory time, on February 5th. This court, obviously, has no jurisdiction to grant such extension to operate retroactively. The statutory provision fixing the time within which bills of exceptions may be filed has been repeatedly held to be mandatory and jurisdictional. In the absence of any extension of time, either by stipulation of the parties or by the court in which the action was tried, or a judge, referee or judicial official thereof, or a justice of the supreme court, before the time for filing had expired, any court or judicial officer who, before such expiration of the statutory time, would have had jurisdiction to entertain such a motion, and, upon good cause shown, to grant such extension while there was yet time remaining upon which same could operate, necessarily, because of the mandatory provision of the said statute fixing the time (said section 31 of the New Trials and Appeals Act of 1937), would have lost jurisdiction and would have no power to extend such time after the statutory time has expired. The statute providing for enlargement or extension of time within which to file a bill of exceptions, same being section 37 of the New Trials and Appeals Act of 1937 (N.C.L.Supp. 1931-1941, sec. 9385.87), does not provide for the creation of a neto period of time, in reference to bills of exceptions, but merely the enlargement or extension of existing time. Obviously, time once, but no longer, existing cannot be the basis of extension or enlargement. An enlightening treatment and application of the law on this subject occurs in the case of Baker v. Baker, in the opinion, by Mr. Chief Justice Taber, on rehearing, 59 Nev. 177, 96 P.2d 200.

That case was a contested divorce action, in which this court made certain money allowances to the guardian of an insane wife to pay certain of her expenses on appeal to this court, including the cost of transcribing the court reporter’s shorthand notes of the trial in the lower court, and the cost of preparing a typewritten transcript of the proceedings in that court. In connection therewith this court, not then knowing that the statutory time for serving and filing a bill of exceptions in the lower court had expired four days' before, on March 4, 1939, filed its decision, which included the following order directing the district court in the premises:

“Reasonable time after compliance with said order for allowances will be allowed appellant by the district court for preparing, filing and serving proposed bill of exceptions, and for taking such other steps as may be required to complete the bringing of her appeal to this court.”

The opinion on rehearing in that case, reported, as aforesaid, in 59 Nev. pages 177-179, 96 P.2d 200, 201, by Mr. Chief Justice Taber, clearly exemplifies the mandatory and jurisdictional character of the time requirement in regard to filing and serving bills of exceptions. It discloses that Chief Justice Taber clearly realized the nullity of the order to the lower court to extend the time for filing and serving a bill of exceptions, made, unwittingly, after the time had expired. This court, under such circumstances, felt impelled to set aside its order previously made, which was thus, upon rehearing, shown to have been made four days too late, and to have been in excess of this court’s jurisdiction, and, therefore, void.

That case is directly in point to the situation with which we are confronted in the instant case, in considering defendant’s motion requesting this court to extend his time within which to serve and file bill of exceptions, four months after the time has expired, and in effect, to operate retroactively. If this court had possessed such power, it would not have felt impelled to set aside its own order in Baker v. Baker, supra, notwithstanding the court was convinced that Mrs. Baker was entitled to the allowances made, and even suggested that she might renew her application for further allowances on appeal, if the district court relieved her of her default, in a proper proceeding brought upon notice, under the statute providing relief from default upon the ground of mistake’, inadvertence or excusable neglect. The opinion.on rehearing is not unduly lengthy, and we will now incorporate same in full herein. Such opinion is as follows:

“In our decision denying respondent’s motion to dismiss appeal and granting, in part, appellant’s motion for allowances, 59 Nev. 163, 87 P.2d 800, 805, we included the following sentence: ‘Reasonable time after compliance with said order for allowances will be allowed appellant by the district court for preparing, filing and serving proposed bill of exceptions, and for taking such other steps as may be required to complete the bringing of her appeal to this court.’ Respondent filed a petition for rehearing, which was granted. On the rehearing it was shown that appellant’s time for filing and serving-bill of exceptions had been extended several times by the district court; but had expired, without stipulation for further time, on February 28th, 1939, four days before said decision of this court was filed. It further appears that, after the petition for rehearing was filed but before it was granted, appéllant, in the district court, noticed a motion for an order relieving her from her default in failing to secure an extension of time within which to file a bill of exceptions, the motion being based upon the ground that such failure was the result of mistake, inadvertence and excusable neglect.

“It is a jurisdictional requirement that bills of exceptions be filed and served within the time prescribed by statute, or within such further time as may be given by order of court or stipulation. Johnson v. Johnson, 54 Nev. 433, 22 P.2d 128; Comstock Phoenix Min. Co. v. Lazzeri, 55 Nev. 421, 36 P.2d 360. At the time the order of this court was made directing the district court to allow a reasonable time after compliance with the order for allowances within which to file and serve proposed bill of exceptions, it was not known to this court that appellant’s time for taking such steps had expired. When respondent’s motion to dismiss the appeal and appellant’s motion for allowances were heard and submitted, appellant’s time for filing and serving bill of exceptions had not expired. Respondent could not for-see that it would be allowed to expire, and that this court would make the order complained of. He was, therefore, not in a position to attack the order until and except by petition for rehearing.

“The order of this court made on March 4th, 1939, directing the district court to allow a reasonable time after compliance with the order for allowances within which to prepare, file and serve proposed bill of exceptions, is hereby set aside. The order for allowances made on the same day is hereby modified by disallowing the $30 item toward the cost of transcribing the court reporter’s shorthand notes of the trial in the lower court, and disallowing further the item of $65 toward the cost of preparing typewritten transcript of the proceedings in the lower court for filing in this court. The allowance of $100 for attorney’s fee will remain undisturbed.

“If the district court shall decide, or has decided, to relieve appellant from her default in failing to secure an extension of time beyond February 28th, 1939, within which to file and serve her bill of exceptions, or if other legal and proper cause be made to appear, she may renew her application to this court for further allowances on appeal.”

For the reasons above stated and plainly appearing from the reasoning of this court in Baker v. Baker, supra, we are clearly of the opinion that this court.is without jurisdiction to extend, at this time, defendant’s time within which to serve and file bill of exceptions, and his motion for such extension of time must be, and is hereby, denied.