Kremer v. Public Drug Co. ( 1918 )

WHITI'NIG, J.

T-hi-s cause was triad- in the fall -of 1916. The judgment of the trial court -wias eniterd in tlhe spring of 1917. The defendants, intending to move for a new trial, gave notice of intention to so move, and in accordance with the provisions of -chapter 178, Laws 1913, ordered the official stenographer to prepare a transcript of the proceedings at the trial, intending to use the same in the settling of a record for the -purposes of the proposed' -motion for a new trial. From that time -on until the spring of 1918, the trial -court gave to -defendants numerous ex parte orders exitending the time within which' -defendants might settle a record and the time within which they could move for a new trial; and finally on June 18, 1918, upon an order Do show- cause duly served, the saidl trial court made an ord'er relieving the -defendíante from' “all default in the preparation oí.a record for mbt'ion for a new trial and the making of such motion, and that the time for the settling of said record' and -for ¡each and every step incident to the making of tire motion for a new- trial and properly bringing on1 same for' hearing, shall be and the same is hereby extended- for -a -period- of thirty days.” It also appeared!, upon fhe hearing" -of su-ch. order to show -cause, that certain facts existed rendering it impossible for the record herein to be settled in any -one of the manners provided by chapiter 178, Laws 1913. In -its -order of- June 18, 19118, the trial -court añade an order -prescribing a special and different mode for tlhe settling of such record than- -any prescribed by said chapiter 178, Laws- 1913. From this order -of June 18, 1918, and the whole thereof, the plaintiffs have appealed.

Apparently being doubtful of the jurisdiction of the trial -court to make an -order prescribing a spedia-l mode or rule for the settlement of -a record, defendants on the 19th day of June, 19118-, moved this court asking that this -court, 'by -order, direct the -method- for the preparation and- settlement of- a record in tills- case, on- -which record1 a motion for new trial might be based1. An order to show ca-u-se being granted, this motion was brought on for hearing upon which- -hearing it appeared1, by- the affidavits submitted, that the official stenographer had .wholly failed to furnish the transcript ias was h-is duty under the order that -had1 been- given, him for transcript; that but a short time ago the -official stenographer entered the military service of -the United -States, and1 so- entered s'-uC’h -service with • out any knowledge upon -the part of ’defendíante’ -counsel that ihe contemplated- entering same; that, by reason- thereof, it would he impossible for sa'icl stenographer to- prepare a transcript herein; that the stenographic notes- taken by such stenographer are in. such condition that it is impossible for any other stenographer to transcribe tlhe same; that most of the evidence taken: upon.ith-e- trial of this case was in’ the form of exhibits -or depositions and -bu-t a small part thereof the testimony of witnesses given' -on th-e witness stand alt the trial; that this oral testimony whs of suche a nature that the counsel who participated in the trial should, and we believe can, with the assistance of the trial judge, be-able to agree upon' .a statement thereof, fairly presenting fhe merits of any alleged errors which 'defendants might desire to urge upon motion for a new. trilal.

By stipulation) of 'counsel made in open court, i;t wias agreed- (and this court was so requested!) to consider and pass, upon the said! appeal without any further- record than- that before u-s upon the order to. show cause, .and without the formality of printed briefs herein. The court is of the opinion that the questions presented are such that they can be '-properly ' disposed' of in th'i-s opinion in -connection'with the question© arising upon the order to show cause.

[1] As regards that .part of the order appealed from which extends the time within which, defendants might move for a new trial, we are of the opinion that such order should be sustained, though in. sustaining such order we! do not wish, it to1 be understood that we, in any manner, pass upon or .determine whether the motion for a new trial' -herein can he properly heard after the expiration of the time within which an appeal from the judgment herein Should he taken.

As -regards that part of said order which extends- the time for settling the record herein', we are of the opinion, that same is superfluous and of no effect, for the reason that the statute itself gives to the party -ordering a transcript a certain period after the receipt of the transcript from the stenographer within which to prepare his -proposed record1, 'and therefore the 'defendants needed no order of extension' and such -order was- of no effect.

[2] We are of the opinion that there is no authority in the statutes -of this state granting to courts other than this court the power to. prescribe any special rule or 'direction, for the settling of a record for the purposes of a new trial or for appeal. The sole authority therefor is to be flonnid in section 6, c. 178, Laws 1913, which -authority is conferred upon this count. State ex rel. Rearick v. Leggett, 32 S. D. 255, 142 N. W. 974.

[3] As regards the application to this count to fix a special rule or make an order directing the -manner of settling, a record herein, we 'are of the opinion that this court should exercise the power given.' iit 'by the law above referred to, and a special rule or order will be by this court issued herein.

The .order appealed from is affirmed in so far as it extends the time for making a motion for a new trial; it is held for naught .in ■so far .as it extend® the time for settling of a record; and1 it is reversed! in so far as it attempts to prescribe the method! flor settling a record herein'. All without -costs to either party.