Merrill v. Coon , 57 Utah 240 ( 1920 )

FRICK, J.

The plaintiff commenced this action to quiet title to a small strip of ground which is specifically described in her' complaint. The complaint is in the usual form in such actions. Defendants in their answer denied the allegations of the complaint, and, in a counterclaim, set up title to the strip in themselves, and asked that the title be quieted in them. The case was tried to the court without a jury. All the issues were found in favor of plaintiff, and a judgment entered quieting the title to the strip of ground in her, and enjoining defendants from interfering therewith, and denying all of defendants’ claims to said strip of ground. Defendants appeal from the judgment.

The plaintiff interposed a motion to strike the bill of exceptions for the reasons: (1) That it was not served on plaintiff, nor on her attorneys, before it was allowed and settled, as provided by our statute (Comp. Laws 1917, § 6969) : and (2) that no notice of its presentation to the district judge for settlement was given as required by tbe same statute. We have carefully examined tbe bill of exceptions, and can discover no evidence from which we, or any one else, could say that the bill as proposed by defendants was ever served on plaintiff or on her counsel at any time, as required by the aforesaid statute, nor is there any evidence that service thereof was waived.

In settling a proposed bill of exceptions it is important that the provisions of the statute be at least substantially complied with. The provision of the statute that the party who proposed to settle a bill of exceptions must, before doing so, serve his proposed bill on his adversary, or his counsel, so that amendments, if any are desired, may be proposed before it is presented to the judge who tried the case for allowance and settlement, is a very important provision, and, unless waived by the adverse party or his counsel, must be complied with. Every party to an action who may be adversely affected by the appeal must be given the opportunity, as provided by our statute, to propose any amendments to the proposed bill of exceptions before it is allowed and settled and finally made a part of the record on appeal. 1 A bill of exceptions which is allowed and settled on the initiative of one party, and without giving his adversary an opportunity to examine it and to suggest amendments, when such right is not waived, cannot be considered by this court against the objections and protest of such adversary. So far as the record discloses in this case, no such opportunity was given plaintiff, nor her counsel; hence the motion to strike the bill of exceptions upon the first ground must be sustained, in view of that conclusion, it is not necessary to pass upon the second ground of the motion.

A motion is also interposed to dismiss the appeal upon the ground that the defendants have not complied with the rules of this court in preparing and filing abstracts, briefs, etc. While it is true that the rules of this court have been violated in several particulars at least, yet, in view 2 that those violations have in no way prejudiced the rights of the plaintiff and do not affect the jurisdiction of this court, we feel constrained to deny the motion to dismiss the appeal.

In proceeding to a consideration of the appeal, it is obvious that in view that the bill of exceptions has been stricken there is nothing before us, except the pleadings, the findings of fact, the conclusions of law, and the judgment appealed from. The only question, therefore, 3 that we can review, is: Do the pleadings, findings of fact, and-conclusions of law support the judgment? In our Opinion the judgment is clearly supported by the pleadings, findings of fact, and conclusions of law.

In view of that, the judgment should be, and it accordingly is, affirmed, with costs.

CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.