J. C. Penney Co. v. Gravelle

ON MOTIONS OPINION We have before us a motion to strike parts of what is said to be the record on appeal.

This record consists of the judgment roll, a transcript of the proceedings certified by the court reporter, a paper denominated "Decision on Motion for a New Trial," and a large number of other papers, including the notice of appeal and undertaking on appeal. The transcript of the proceedings, and the other papers which purport to be the bill of exceptions, have not been settled and allowed by the judge or court or by stipulation of the parties. On the contrary, said record bears this notation: "Not settled by the court because not necessary as defined Anderson v. Snell [57 Nev. 78], 58 P.2d 1041, and State v. Pansey, 61 Nev. 333 [128 P.2d 464]. Dated this 14th day of September, 1943. George E. Marshall, District Judge."

The motion to strike is addressed to the transcript of the proceedings and all of said papers. It does not go to the judgment roll.

In its broadest scope the motion is based upon the ground that when the purported bill of exceptions was filed, the time for serving and filing the same had expired under section 9385.81, N.C.L. Suppl., and no valid order had been obtained under section 9385.87, N.C.L. Suppl., enlarging the time specified in the former section. The time specified therein is 20 days after final judgment, or if a motion be made for a new trial, then within 20 days after service of written notice of the decision upon such motion, except as in subdivision (2) of said section 9385.81 otherwise provided, which is not applicable here. The appeal is from the final judgment and the order denying appellants' motion for a new trial. Written notice of the decision denying the motion for a new trial was served and filed on January 14, 1943, and appellants' proposed bill of exceptions was not served and filed until the 17th day of August, 1943. Consequently, the time specified in section 9385.81 had expired before such service and filings. However, there appears in the record before us the following order: "Order Enlarging Time For Defendant to Serve and File Bill of Exceptions. Upon motion of Harold M. Morse, Esquire, and Good Cause Appearing Therefor; Pltf not Appearing but Objecting. It is hereby ordered that the defendant, J.C. Penney Company, Incorporated, a corporation, and Oscar Whitworth, shall have to and including the 20th day of August, 1943, within which to prepare, serve and file their bill of exceptions to judgment rendered in the above entitled action, and to the order denying defendants' motion for a new trial. Dated: This 3rd day of August, 1943. George E. Marshall, District Judge."

If this is a valid order appellants' proposed bill of exceptions was served and filed in time. Said section 9385.87 provides: "The several periods of time specified in this act in reference to bills of exceptions only may be enlarged upon good cause shown by the court, any justice of the supreme court, judge, referee, or judicial official, or by stipulation of the parties."

1. Respondent contends that the order was void because there was no showing of good cause to authorize the trial court to enlarge the time; hence appellants' proposed bill of exceptions should be stricken. We do not think that a showing of good cause was necessary. The appellants were not in default when the order was obtained, and it recites that good cause appeared. There is nothing on the face of the order or in the record indicial of the contrary. We should therefore presume in favor of the regularity of the action of the lower court; that it acted regularly and for sufficient cause. This presumption is strengthened by the fact that respondent had notice of the application for the order and declined to appear and contest it. This is plainly inferable from the recital in the order: "Pltf not appearing but objecting." The authorities relied on by respondent, Moyle v. McKean, 49 Utah 93, 162 P. 63; Ward v. Board of Trustees of Racine College, 176 Wis. 168, 185 N.W. 635; Wendlandt et al. v. Hartford Accident Indemnity Co.,222 Wis. 204, 268 N.W. 230; Eskelinen v. Northwestern Casualty Surety Co., 202 Wis. 100, 230 N.W. 33, present a different situation. In those cases the appellant was in default, in the Utah case, for not preparing and serving his proposed bill of exceptions within the time specified by statute, when the district judge allowed and settled the same, and in the Wisconsin cases he was likewise in default when the trial court settled the bill of exceptions. An altogether different rule is applicable as to a showing of good cause to excuse from a default than in the instant case.

2. When a default is involved the burden is on him who seeks to avoid its effect. The Nevada cases cited by respondent, the Virginia Truckee R. Co. v. Henry et al., 8 Nev. 165, and State ex rel. Whalen v. Welliver, Chief of Police, et al., 60 Nev. 154,104 P.2d 188, 1016, are also not in point.

3. Another ground of the motion for striking appellants' bill of exceptions as a whole, is that it was not served on respondent. There is no merit in this. The record shows admission of service on August 17, 1943, and counsel for respondent also admits such service in his brief. It follows that the motion to strike, insofar as it includes the transcript of the proceedings certified by the court reporter, should be denied. It was not necessary that this should be settled and allowed by the court or judge. The certificate of the court reporter was sufficient. The motion as to all the other papers is on the ground that the bill of exceptions as a whole was not settled and allowed by the other papers is on the ground that the bill of exceptions as a whole was not settled and allowed by the court or judge. As previously stated, these papers were not settled and allowed, and the reason given by the trial court was that it was not necessary because of the cases of Anderson v. Snell, supra, and State v. Pansey, supra. Counsel for appellant seems to share this conclusion. They are in error. Neither case holds to that effect, and the former is to the contrary. It was distinctly held in that case that, under the statute of 1935 then in force, only matters other than a transcript of the proceedings and not properly a part of the judgment roll, must be settled by the court or judge or by stipulation of the parties, to become a part of the bill of exceptions.

4. We therefore held against the contention that such a transcript of the proceedings when used as a bill of exceptions must be settled and allowed. The misconstruction of Anderson v. Snell by the trial court may have been due to the fact that, while the document filed as a bill of exceptions contained a number of other papers besides the judgment roll and the transcript of the proceedings, none of which had been settled and allowed by the court or judge, this court, notwithstanding, denied the motion to strike. But the motion was not levelled at these other papers. It was addressed to the document as a whole. It was denied because the judgment roll was properly a part of the record on appeal, as was the transcript of the proceedings. Had the motion been also addressed to the other papers they would have been stricken. The statement of the trial court that it was not necessary to settle the bill of exceptions, is contrary to the provisions of said section 9385.81 insofar as the papers other than the certified transcript of the proceedings are concerned.

State v. Pansey is a criminal case. It is no authority for the trial court's conclusion. Counsel for appellants, as appears from the record before us, presented to the trial court a proper form of certificate of settlement and allowance. They are nowise in fault and appellants are entitled to have settled and allowed a bill of exceptions. He has moved, under section 9385.85 N.C.L. for such order as may be proper in the premises. Said section in part provides: "* * * A judge, referee, or judicial officer may settle, allow, and certify to a bill of exceptions after he ceases to be such judge, referee, or judicial officer, and ifsuch judge, referee, or judicial officer, before the bill of exceptions is settled dies, is removed from office, becomes disqualified, is absent from the state, or refuses to settle andallow any bill, or if no method is provided by law for the settlement of the same, it shall be settled and certified insuch a manner as the supreme court may by its order or rules direct."

5. Pursuant to that part of the statute we have italicized, it is ordered that the record on appeal before us be returned by the clerk of this court to the clerk of the Eighth judicial district court of the State of Nevada, in and for the county of Clark, and the said district court or the judge thereof, is ordered to settle and allow appellants' bill of exceptions, whereupon the clerk of the said district court is directed to return said record on appeal to the clerk of this court.

Respondent is given twenty days from the settlement and allowance of the bill of exceptions to serve and file his answering brief.

ON THE MERITS January 29, 1945. 155 P.2d 477.