O'Donnell v. City of Butte

As grounds for the motion for a rehearing, defendant contends that this court, in disposing of the appeal on the question of the defective bill of exceptions, overlooked and ignored statutory provisions of this state and former controlling decisions of the court, contrary to the rules laid down in the opinion, viz.:

(1) That this was an appeal from the judgment, and on such an appeal the court may not review a decision or order from which an appeal might have been, but was not, taken, citing section 9750, Revised Codes of 1921, Clark v. Baker, 6 Mont. 153,9 P. 911, and Batchoff v. Butte Pac. Copper Co., 60 Mont. 179,198 P. 132, and that an order granting additional time in which to present a bill of exceptions is an appealable order, citing Beach v. Spokane R. W. Co.,21 Mont. 7, 52 P. 560, and McGlauflin v. Wormser, 28 Mont. 177,72 P. 428.

(2) That all objections to the record shall be deemed waived, unless a motion to dismiss has been made, and therefore the court should have held that the objection that the bill of exceptions was not presented or signed within time was waived by not appealing from the order granting additional time in excess of that allowed by statute, under the circumstances commented upon in the opinion, citing section 9747, Revised Codes 1921, andGreat Falls Meat Co. v. Jenkins, 33 Mont. 417, 84 P. 74.

(3) That the presumption is that the trial court regularly acted "in the lawful exercise of its discretion," citing section 10606, Id.

As the casual reading of the opinion may not disclose the fundamental principle upon which it is based, we deem it advisable, in justice to counsel for appellant and the profession generally, to explain our ruling on the motion for rehearing.

1. Counsel, in their petition for rehearing and in their[2] briefs in support thereof, have entirely lost sight of the facts that the question presented by the condition of the record before us — the condition of the bill of exceptions itself — is one of jurisdiction, and therefore fail to observe the distinction which must clearly be drawn between this opinion and the authorities cited in support of their contentions.

Our statute (sec. 9390, Rev. Codes 1921) prescribes the time for the presentation of a bill of exceptions to the trial court for settlement, the steps to be taken in securing additional time, and the settlement and filing of the bill. On the expiration of the time allowed by statute (whether original or extended) the court loses jurisdiction to settle or sign the bill. (Evans v. Oregon Short Line R.R. Co., 51 Mont. 107,149 P. 715; Crowe v. Charlestown, 62 W. Va. 91, 13 Ann. Cas. 1110, 57 S.E. 330; St. Louis Ry. v. Holman, 45 Ark. 102;Carroll v. Saunders, 38 Ark. 216.) Inasmuch as at that time the court is without jurisdiction over either the parties or the subject matter of the action, a bill of exceptions, presented, settled and signed after the expiration of the time prescribed in the statute for such action, is a nullity, and cannot be considered on an appeal, even when the objection is not urged, and even though counsel should, by consent or written stipulation filed in the appellate court, agree that it shall be considered. (Crowe v. Charlestown, supra; St. Louis Ry. v. Holman, supra;Marseilles v. Howland, 136 Ill. 81, 26 N.E. 495; Hawes v.People, 129 Ill. 123, 21 N.E. 777; State v. Bohan,19 Kan. 28; Vickers v. Sanders, 106 Ga. 265, 32 S.E. 102; Freeman v. Barnham, 17 B. Mon. (Ky.) 603; Patterson v. Patterson,89 Tenn. 151, 14 S.W. 485; Cooley v. United States Sav.Assn., 132 Ala. 590, 31 So. 521; Sewell v. Edmonston,66 Ga. 353.)

In the case of Crowe v. Charlestown, cited, counsel attempted to agree that the bill of exceptions was properly presented and settled within time. After reviewing the decisions of other states and concluding that the great weight of authority was as stated in the opinion, and that those holding to the contrary were based upon statutes permitting consent, or without precise limitations, the court said: "Our conclusion is that the court was without power or authority to sign the bills of exceptions after the expiration of the time given in the statute; that there was no jurisdiction for so doing, the court having lost jurisdiction of the subject matter, as well as the parties, at the expiration of that time. * * * [this] * * * is consonant with both reason and authority, * * * and inasmuch as the court had no jurisdiction, it follows necessarily that the parties were powerless to confer such jurisdiction by agreement or consent."

In the Kansas case of State v. Bohan, cited, every effort seems to have been made by counsel for respondent to cure the defect and to urge the court to consider the bill of exceptions, yet the court said: "The defective record has been attempted to be cured in three ways, viz., by filing an agreement from the late Attorney General that the bills of exceptions were properly signed and filed, and that the case might be heard upon the merits, by bringing to this court a copy of an agreed statement showing that the bills of exceptions were presented to the court below on May 27, for allowance, and by an alleged nunc pro tunc order of the court of June 5. * * * If counsel could waive in this court manifest irregularities as to the mode and time of signing and filing bills of exceptions, the preparation and approval of bills of exceptions beyond term time would become allowable, and the provisions of the statute in this respect be disregarded. * * * A bill of exceptions, which has been allowed and filed beyond the trial term, * * * cannot be considered here, although counsel formally agree to waive the disregard of the law as to the making of the said bills of exceptions."

2. As to the court disposing of the question on its own[3] motion, without a proper presentation: A question, jurisdictional in its nature, must be disposed of by the supreme court, no matter how irregularly called to its attention, (People v. Oakland Water Front Co., 118 Cal. 234,50 P. 305), where it was urged, as here, that the question was not presented and could not be considered, the court saying: "There is, however, a preliminary question, jurisdictional in its nature, which must first be disposed of. * * * No motion to dismiss upon this ground was made, * * * but notwithstanding the failure of the defendants to raise this objection in the regular way, we consider it necessary to decide if for the reason that it is, as above stated, jurisdictional in its nature."

In McKinnon v. Hall, 10 Colo. App. 291, 50 P. 1052, there appears in the syllabus the following: "The appellate court will, sua sponte, notice want of jurisdiction in the trial court, if apparent on the record, though the question is not raised in either court by the parties." The statement is supported by the following declaration of the court: "The jurisdiction of courts is defined by the law, and, where it does not legally exist, no consent of parties can confer it. There was no suggestion of want of jurisdiction made in the district court, and none is made here; but, where such want appears upon the face of the record, we are compelled to notice it."

Corpus Juris lays down the rule that: "It is very generally held that the appellate court will, without any assignment of error or a specification in the grounds or reasons of appeal, notice its own want of jurisdiction, or the lower court's want of jurisdiction over the subject matter." (13 C.J. 1343, citing a long list of authorities.)

This is an exception to the rule that an appellate court will not consider errors not assigned. (Weisman v. Russell, 10 Or. 73; Ware v. Clark, 58 Tex. Civ. App. 356, 125 S.W. 618;Robertson v. Robertson, 178 Mo. App. 478, 163 S.W. 266; ForeRiver S. Co. v. Hagg, 219 U.S. 175, 55 L. Ed. 163, 31 Sup. Ct. Rep. 185 [see, also, Rose's U.S. Notes].)

In Philbrook v. Randall (Cal. Sup.), 231 P. 739, it is said: "The appellate court cannot be expected to prosecute an independent inquiry for errors upon which the appellant may possibly be relying. It will notice only those assignments pointed out by the brief, and all others are deemed to have been waived or abandoned. However, this rule is subject to limitations, and the court is at liberty to decide a case upon any points that its proper decision may require, whether taken by counsel or not" — citing Hibernia S. L. Society v. Farnham,153 Cal. 578, 126 Am. St. Rep. 129, 96 P. 9; 2 Cal. Jur. 729.

3. As to the question of the presumption of regularity, it is[4] true that section 10606, Revised Codes of 1921, provides certain "disputable presumptions" may be indulged in, among which are: "16. That a court or judge, acting as such * * * was acting in the lawful exercise of his jurisdiction." However, the timely presentation, settlement and signing of a bill of exceptions is a jurisdictional question. It is generally held that it must be made to appear affirmatively in the record that the bill of exceptions was presented, settled and signed within the time provided by statute. (Southerland v. Putnam, 3 Ariz. 188,24 P. 320; Widner v. Buttles, 3 Colo. 1; Malott v. Central T. Co., 168 Ind. 428, 11 Ann. Cas. 879, 79 N.E. 369; Baker v. Georgia Cent. Ry., 165 Ala. 466,51 So. 796.) And this timely action may not, ordinarily, be supplied by a presumption. (Baker v. Georgia Cent. Ry., supra;Corley v. Evans, 4 Bush (Ky.), 409; Hill v. Bassett,27 Ohio St. 597; Commercial Nat. Bank v. Thrasher, 61 Mont. 242,201 P. 1009; Woodard v. Webster, 20 Mont. 279,50 P. 791.)

In the case of Baker v. Georgia Cent. Ry., supra, the court said: "The burden is on the appellant to show that his bill was signed within the time required by law. There is no presumption, in the absence of proof, that it was so signed. Before the adoption of the present Code a bill would be stricken, on motion of appellee or by the court ex mero motu, unless it appeared that the bill was signed within the time required by law. The statute now provides that the bill may be stricken only on appellee's motion * * *; this statute does not change the rule as to the necessity of its being made to appear that the bill was signed within the time required by law."

In Commercial National Bank v. Thrasher, supra, this court said: "The record is wholly barren of an excuse for delay in the presentation of the proposed bill and amendments to the trial judge. Likewise it is undisclosed whether or not the proposed amendments to the bill were allowed. In the absence of an affirmative showing to excuse the delay, there is no presumption to justify it" — citing Woodard v. Webster, supra.

It has been held that "courts will indulge in presumptions to[5] support a judgment but never to reverse it." (2 R.C.L. 221; Brady v. Kreuger, 8 S.D. 464, 59 Am. St. Rep. 771, 66 N.W. 1083; Philbrook v. Randall, supra.)

In Sheppard v. Sheppard, 15 Cal. App. 614, 115 P. 751, it is said: "In the absence of anything to the contrary appearing in the record, it will be presumed that a bill of exceptions was presented and signed within time." In our opinion that court meant no more than to say that, if no objection to the settlement of the bill appears in the record, the court will presume that the bill was settled in time. And this court will not search the record for error not called to its attention in any manner, but will, "in the absence of anything to the contrary appearing in the record," indulge in that presumption.

But even this rule cannot assist the defendant here, as the bill of exceptions shows on its face that the court had lost jurisdiction long prior to its presentation for settlement, without excuse for the delay, and that it was settled and signed, not by consent, express or passive, of the plaintiff, but over the strenuous objection of counsel, and even the acceptance of service was qualified by the declaration that such acceptance was "without waiver of any objection and reserving all objections and especially the objection that this service is more than two months too late." These objections and the conditional acceptance of service are a part of the record before us.

For some unexplained reason, counsel for plaintiff neglected to take advantage of the objections and exceptions reserved by appropriate action; but with this jurisdictional defect in the bill staring us in the face, it was our duty to take notice thereof, and ex mero motu to declare the purported bill of exceptions a nullity, thus disposing of the appeal as we did in the original opinion.

Rehearing denied.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES HOLLOWAY and STARK concur.

MR. JUSTICE GALEN, being absent on account of illness, took no part in the original decision and takes no part in the decision on motion for rehearing.