Thomson v. Meridian Life. Ins. Co. of Indianapolis , 36 S.D. 175 ( 1915 )

WHITING, J.

This action is before us upon an order requiring appellant to- show cause why the settled record heretofore filed herein should) not be stricken from the files, and also why the appeal herein should not be dismissed.

[1,2] Respondent asks that the appeal be dismissed, because the undertaking upon appeal was not executed in the state of South Dakota, and -because such undertaking was' not executed by any person authorized to execute the same on behalf of the corporation named therein as surety. We know of no' provision of our statute that requires the undertaking, when executed by a foreign surety -company as surety, as in the case before us, to be executed within this state. If such company is authorized to do business -in this state, and such undertaking is properly executed by such company, the provisions of -our statute are fully complied with. In the present case the undertaking appears to have been executed by an; attorney in fact; but it is claimed, and the evidence offered tends to show, that the party who-, as attorney in fact, -executed such undertaking was unauthorized to execute undertakings for use in this state. This fact was unknown to appellant, who supposed that the undertaking had been executed by one authorized to execute the same. Appellant has asked to be allowed-to have such undertalcing properly executed by some person having authority to- execute the same on behalf of the surety company. This he is clearly entitled to under the provisions of section 461, C. C. P. La Penotiere v. Kellar, 28 S. D. 469, 134 N. W. 48.

[3] Respondent asks that the record, settled by the trial court and. filed in this cause, should be stricken from the files. This record was one to be settled under chapter 178, Laws 1913. Under the provisions of such statute,' an appellant, within;- 10 days after procuring a certified transcript of the evidence from the court stenographer, or within such further time as the court may grant, should serve such transcript, together with -his- specifications of -error attached thereto, upon the respondent, ‘ and should file the same in the office of the clerk of court; if, within 10 days, the, respondent does not suggest any amendments to such settled record, the clerk should present the same,’together with the papers constituting the judgment roll, to the trial court, and procure from him a certificate t-o be attached thereto settling the completed record as the settled record. Appellant served the transcript of the evidence without having attached thereto any specifications of error. Several days thereafter, and after the id days from the time of procuring the transcript had expired, appellant served upon respondent’s counsel her specifications of error. Respondent’s counsel objected to such service upon the ground that it was not timely. Thereafter, and as claimed by respondent and assumed by this court for the purposes of this hearing, the trial court, within less than io days from the time of the service of such specifications of error, settled the record herein by attaching his certificate to a record which included such transcript and the said specifiations thereto' attached. Prior to the hearing of the motion for new trial, respondent, upon notice given, objected to the consideration of such specifications of error, and also, after ■the submission of the motion for new trial, moved that such specifications be stricken from the settled record, because the same were not timely served, and, as contended by respondent, not properly a part of such settled record. The trial court overruled the objection, and refused to strike such specifications from the settled record.

We do not believe that respondent has pursued his proper remedy. While the statute directs that the specifications shall be attached to' and -served with the transcript of the evidence, and while, without such specifiations being attached to such transcript, there can be no- record settled which would avail the appellant anything, yet we do not believe such statute should be held to be mandatory, and that upon failure to attach such specifications the appellant is without any means of settling a proper record. We think it more consonant with reason and justice to hold that an appellant may serve his specifications of error after he has served his transcript, provided that such specifications are served within the time fixed by the statute for the service of the transcript and specifications, and that, from the date of the service of such specifications, the service of the proposed settled record is complete.

[4] But, in the present case, it appears that the specifications were served after the 10 days had expired, and presumably without any order having been made extending time of service. Did this deprive the trial court of the power to settle the record? We think not. The statute specifically provides that the proposed settled record may be served within io days, or such further time as the court allows. While -better practice would require an order to be procured extending the time, and while, by failure to procure such an order, an appellant may run the risk of having any extension refused hini, and therefore run the risk of being denied a settled record,, yet we think that the mere settling of the record 'by the trial court,, when the proposed record had been served after the io days had expired, was, in effect, an extension of the time for such service, and that the matter stands as though a proper order had been procured extending the time for, and before, service of the proposed settled record.

[5] It further appears that, after the specifications were served, the trial court settled such record before 10 days had expired. Was such act on the part of 'the trial court a nullity, or was such purported settled record valid as a settled record until attacked in the trial court? While the trial court exercised its power and jurisdiction to settle the record prematurely, yet its jurisdiction depended, not upon the lapse of the 10 days, but upon the fact that a proposed settled record had been served and filed, exactly as the jurisdiction of a court to render a judgment does not rest Upon the lapse of time after the service of the summons but upon the service of the summons. A judgment prematurely •entered may be irregular, but it is not void, and the injured party’s remedy is not fa> treat the same as void, but to proceed by proper motion to have the same set aside. Respondent is not prejudiced unless such settled record is 'unfair to it, and it should not be heard to question such record, except for the purpose of procuring such amendments as will make it a proper record. It should have done this by a motion before the trial court, setting forth the-irregularities that had 'deprived it of its right to the full 10 days within which to propose amendments, presenting to such trial court such amendments, if any, as it might desire to have incorporated in such settled record, and asking the court to amendj the settled record in that respect. It is certainly clear that, if the settled record was in every respect a proper and complete record, one under which the rights of all parties were properly preserved, respondent cannot complain, and - is not injured- in any respect, although the record may have been settled prematurely.

The order to show cause-is dismissed, and the relief sought by respondent is denied.

McCOY, P. J., and SM'ITH, J., not sitting.