Opinion
No. 6,761.
Submitted December 15, 1930.
Decided February 28, 1931.
Appeal — Bills of Exception — Time for Preparation and Service — What Constitutes "Notice" of Entry of Judgment. Appeal — Time Within Which to Prepare and Serve Bill of Exceptions — What Constitutes "Notice" of Entry of Judgment. 1. The fifteen-day period within which, after receiving notice of the entry of judgment in a cause tried without a jury, the party appealing must prepare, file and serve his bill of exceptions, does not commence to run until after he receives formal, i.e., written, notice of such entry, served in the manner prescribed by law, mere knowledge on the part of his counsel that judgment had been entered not amounting to "notice." Same — Preparation and Service of Bill of Exceptions — Knowledge of Entry of Judgment not Notice from Receipt of Which Fifteen-day Period Commences to Run — Case at Bar. 2. In an action tried without a jury the parties did not receive formal notice of the entry of judgment from the clerk of court until five months after its entry, although appellant's counsel was furnished a copy thereof a few days after entry, he paying the fee for its entry. Ten days after notice of its entry he was granted additional time within which to prepare and file his bill of exceptions and within such time he presented it for settlement. Held, on appeal from the order settling the bill that the contention that the court was without jurisdiction to settle it because not presented within fifteen days after counsel had knowledge of the entry of judgment has no merit, the fifteen-day period not having commenced to run until formal receipt of its entry.
Appeal from District Court of Rosebud County, in the Fifteenth Judicial District; Edgar J. Baker, a Judge of the Tenth District.
Mr. T.A. Mapes, Mr. G.A. Horkan and Mr. I.W. Choate, for Appellants.
Mr. F.F. Haynes and Mr. P.E. Geagan, for Respondent.
This is an appeal by defendants from a special order made after judgment in cause No. 6672, this day decided (see p. 229, infra, 297 P. 470), overruling defendants' objections to the settlement of plaintiff's bill of exceptions.
Decree in cause No. 6672 was entered on September 12, 1929, [1, 2] awarding plaintiff judgment in the sum of $66.42. On February 10, 1930, the clerk of the district court delivered to attorneys for plaintiff and defendants a "notice of entry of judgment," formally notifying them that judgment had been signed on September 10, 1929, and filed and entered on September 12. On February 20, 1930, the judge presiding in the cause entered an order granting plaintiff thirty days' additional time within which to prepare and file a bill of exceptions. On March 17, 1930, and within the time specified in the order extending time, plaintiff presented for settlement her proposed bill of exceptions. Defendants objected to the settlement of the proposed bill of exceptions upon the ground that the same was not presented within the time allowed by law; that the notice of entry of judgment given by the clerk of the court on February 10 was a nullity and the court was without authority to grant plaintiff additional time to serve and file a bill of exceptions and was without jurisdiction to settle the same.
A hearing was had by the court upon defendants' objections, and it appears that the decree was sent by Judge Baker, the judge presiding, to the clerk of the court and received by the latter on the morning of September 12, 1929. There is some conflict in the testimony as to what was done by the clerk's office with reference to the delivery of a copy of the court's findings and decree to plaintiff's counsel, but it does appear that within a few days after the entry of decree counsel for plaintiff received a copy of the findings and decree. The fee for the entry of the decree was paid by Mr. Haynes, one of plaintiff's attorneys, about October 1, 1929. Defendants' objections were overruled and they appeal from the order.
It is argued that since counsel for plaintiff had knowledge of entry of the decree in her favor, that was "sufficient to start the running of the 15 days' time for the presentation of the bill of exceptions specified in section 9390, Rev. Codes, and in consequence the court's order granting 30 days' additional time was in excess of jurisdiction and void." The contention is not tenable. "The party appealing from a final judgment, if he desires to present on appeal the proceedings had at the trial, must within 15 days after the entry of judgment, if the action was tried with a jury, or after receiving notice of the entry of judgment, if the action was tried without a jury, * * * prepare and file with the clerk of the court and serve upon the adverse party a bill of exceptions," etc. (Sec. 9390, Rev. Codes 1921.) The "notice" referred to in this section is not synonymous with "knowledge," and, as used, contemplates a written notice served in the method prescribed by law. ( State ex rel. Cohn v. District Court, 38 Mont. 119, 99 P. 139; Miles v. Miles, 76 Mont. 375, 247 P. 328; see, also, State ex rel. Bullard v. District Court, 86 Mont. 358, 284 P. 125.)
The court properly overruled defendants' objections, and the order is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, ANGSTMAN and MATTHEWS concur.