State ex rel. Thelen v. District Court

MR. JUSTICE HOLLOWAY

delivered the opinion of tbe court.

In an action pending in tbe district court of Chouteau county, entitled “Williams v. Rogers,” in which tbe trial bad resulted in a verdict for the plaintiff, a notice of intention to move for a new trial was filed on behalf of tbe defendant, and the draft of a proposed bill of exceptions was prepared and served upon Freeman & Thelen, attorneys for plaintiff. On May 14, 1915, counsel for plaintiff served and filed their proposed amendments. On May 20 counsel for defendant demanded of counsel for plaintiff tbe return of tbe draft of the proposed bill, and, this demand having been refused, applied to tbe court for an order requiring its return. Tbe order was granted and served, but, counsel refusing to comply, proceedings in contempt were instituted, and upon a bearing, Attorney Thelen was adjudged in contempt, and bis punishment therefor assessed. Tbe supervisory power of this court is invoked to annul tbe judgment in tbe contempt proceedings. An order to show cause was issued and tbe matter submitted upon motion to quash.

Tbe first contention of relator is that when tbe demand was [1] made for tbe return of tbe draft, tbe time for presenting tbe proposed bill and amendments had expired, and therefore no useful purpose could have been served by compliance with tbe demand. Section 6788, Revised Codes, requires that within ten days after tbe amendments are served, tbe proposed bill and amendments must be presented by tbe party seeking settlement, to tbe judge who tried or heard tbe ease, upon five days’ notice to tbe adverse party, or be delivered to tbe clerk or judge. If it bad been the purpose of counsel for defendant Rogers to present tbe proposed bill and amendments for settlement within ten *339 days after the' amendments were proposed and upon five days’ notice to plaintiff, the time within which they could have complied with the statute above had expired, and no useful purpose could have been subserved by a return of the draft of the proposed bill which had been served upon counsel for plaintiff. But this relator is- altogether in error in assuming that the statute above provides but a single method of procedure. In Girard v. McGlernan, 391 Mont. 523, 105 Pac. 224, we had occasion to consider this question at length, and from a review of the history of the statute, in the light of its provisions, we concluded that a party seeking settlement of a bill of exceptions can fully comply with the law if within ten days after the amendments are served he either: (1) presents the proposed bill and amendments upon five days’ notice to the adverse party; or (2) delivers them to the clerk; or (3) delivers them to the judge. That decision has been approved in Freeman v. Weare, 42 Mont. 472, 113 Pac. 466, and in Best Mfg. Co. v. Hutton, 49 Mont. 78, 141 Pac. 653. The five days’ notice to the adverse party is required only in the event the moving party elects to proceed under the first of these three plans. If he proceeds under the second or third plan, he has the entire period of ten days from the date upon which the amendments were served within which to deliver the proposed bill and amendments. The same section also provides a fourth plan. If there are not any amendments offered, or if amendments are offered and accepted, the moving party may present the proposed bill and amendments, if any, to the judge for settlement without notice to the adverse party. The affidavit for this writ fails to disclose — as it could not well disclose — -that counsel for defendant Rogers did not intend to pursue either the second, third or fourth plan indicated above, and therefore we must indulge the presumption that the draft of the proposed bill, if returned, would have served the purpose to have the bill of exceptions settled in due time.

It is next contended that the draft of the proposed bill had not been filed, and was not therefore one of the' records in the case, and for this reason the trial court had no authority over it *340 and could not order its return. This contention will be noticed further; but for the present it suffices to say that, under subdivision 9 of section 7309, if by withholding the draft of the proposed bill counsel unlawfully interfered with the proceedings of the court in Williams v. Rogers, the act constituted a contempt of court within the meaning of that section.

The principal controversy is waged about the construction to be given the first portion of section 6788 above. What is the [2] legal status of the draft of a proposed bill of exceptions which the moving party serves upon his adversary? So far as involved here, the portion of the section in controversy reads: “When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within ten days after the entry of judgment, * * * or such further time as the court in which the action was pending, or a judge thereof, may allow, prepare the draft of a bill and serve the same, or a copy thereof, upon the adverse party.” It is to be observed that here again the statute provides alternative plans of procedure. The moving party is clearly within the law if he serves upon his adversary either the original draft of his proposed bill, or a copy thereof. The language of the statute is too plain to admit of any other construction. The relator insists that the draft or the copy, as the case may be, which is served upon the adversary, becomes the property of such adversary, and he cannot be required to surrender it. Assuming that this position is correct in the event a copy is served, is it correct when the original draft is served, as it may be under the explicit terms of the statute above ? It was unnecessary for counsel for defendant Rogers to prepare any copy of the draft made. They were authorized to serve, and did serve, the original draft. If that draft when served, became the private property of plaintiff Williams or her counsel, the new trial proceeding instituted in that action terminated at its inception. If the original draft passes beyond the control of the moving party and the court as soon as it is served, there is then no means by which the bill can ever be settled; for the moving party is not authorized to present a copy for settlement but is com *341 manded by the statute to present to the judge, or leave with the clerk or judge, the proposed bill, which is the original draft. Under section 6796 new trial proceedings are instituted by serving and filing a notice of intention. Where a bill of exceptions is to be relied upon and none has been settled, such bill is to be prepared and settled under the provisions of section 6788 above. If the moving party elects to serve the original draft, as he may do, then in such case the new trial proceedings comprehend the service and filing of the notice of intention; the service of the original draft of the proposed bill; the service of amendments, if any; the presentation or delivery of the proposed bill and amendments; the settlement of the bill; and the submission and decision of the motion. The presentation of the original draft to the judge for settlement, or its delivery to the clerk or judge for the purpose of settlement, is as much a new trial proceeding as is the service and filing of the notice of intention, the settlement of the bill, or the determination of the motion. Although such original draft is not technically a record in the case, until settled as the bill of exceptions and filed with the clerk, it is potentially such a record from the time of its service, and if, by withholding it, the settlement of the bill is prevented, the act of withholding constitutes an unlawful interference with the new trial proceedings. The refusal of Attorney T'helen to return the original draft in order that it might be possible to have the bill of exceptions settled rendered him amenable to the court before which the new trial proceedings were pending.

It is idle to refer to the approved definitions of the term “serve.” Section 6788 expressly authorizes the service, in this particular instance, of the original draft, and must contemplate its return; otherwise the bill could never be settled and the statute would be meaningless. The provisions of the section first appear in the laws of this state in the Code of Civil Procedure' of 1895. We are not informed by our Code commissioners from what source these provisions were taken; but their similarity to the terms employed in section 650 of the Code of Civil Procedure of California would lead to the conclusion that they were bor *342 rowed from California, from which source many of our Code provisions come. Section 650 of the California Code of Civil Procedure was first adopted in substantially its present form in 1874, before typewriting machines or other means of manifold writing were in common use, and the provision for service of the original draft was doubtless intended to obviate the labor and expense of preparing a copy by the tedious method of writing it out with pen and ink. Our legislature might with propriety have required the service of a copy in every instance, but it did not do so. Doubtless the item of extra expense for procuring a copy of the original draft was an influential factor in the action taken. The very liberal provisions of section 6788 would indicate a legislative purpose to provide for the settlement of bills of exceptions by the simplest and least expensive method. But whatever may have been the underlying principle which prompted its enactment in the present form, it suffices for us to [3] know that it is so written. With questions of legislative policy, courts are not concerned. The duty imposed upon them is to construe the laws as they find them.

In. the absence of any showing that the district court acted arbitrarily or capriciously in holding this relator guilty of contempt, we are not at liberty to interfere. The motion to quash is sustained and the proceeding is dismissed.

Dismissed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.