While I concur in the results reached by the prevailing opinion on the merits of this case, I nevertheless feel that our decision heretofore rendered in this case (reported in, Utah,101 P.2d 372) should be affirmed with respsect to the time within which a proposed bill of exceptions, with or without amendments, should be presented to the trial court for settlement.
I cannot agree that the word "thereafter" contained in the statute (§ 104-39-4, R.S.U. 1933) can refer to no point of time where no amendments are proposed by the adverse party, or if proposed are allowed. Certainly there is just as much a point of time from which the ten-day period, for presentment of the proposed bill to the judge, may commence in the case where no amendments are proposed, or if proposed are allowed, as in the case where there are amendments. In either case the adverb "thereafter" refers to the time when the party on whom the proposed bill has been served acts, either by stipulation that the proposed bill may be settled without amendments (as was done in the present case) or by proposing certain amendments and serving the same on the other party. Or, if he does not act in either of the above ways, the ten-day period should commence when the proposed bill is again returned to the person proposing it.
I do not think the California case of Houghton v. SuperiorCourt, 128 Cal. 352, 60 P. 972, 973 and others cited in the prevailing opinion, are persuasive of the position therein *Page 375 taken. In commenting on the language of a California statute similar to the one here involved, the court in the Houghton case said:
"It is there provided that, if amendments to the bill areproposed, the bill and amendments proposed must be presented to the judge within 10 days thereafter, on 5 days' notice to the adverse party, or to the clerk of the court for him; but if no amendments are proposed, or, if proposed, they are acceded to, the statement may be presented to the judge without notice.Within what time is not stated." (Italics added.)
The italicized portions of the above quotation are conclusions of the court and nowhere appear expressly in the statute. I believe the wording of our statute requires a different construction. It expressly reads:
"Within ten days * * * the adverse party may propose amendments * * *. The proposed bill and amendments must, within ten days thereafter, be presented * * * to the judge * * * upon five days' notice to the adverse party, or be delivered to the clerk of the court for the judge."
Then at the end of the section is contained an exception to the requirement of five days' notice to the other party.
"If no amendments are served, or if served are allowed, the proposed bill may be presented, with the amendments, if any, to the judge for settlement without notice to the adverse party."
But no other exception is contained in the section, either as to time or manner of presentation of the proposed bill. The conclusion thus resulting is that by excepting from the requirement of five days' notice to the adverse party only situations where there were no amendments proposed or where, if proposed the amendments were accepted, the legislature must have intended that in all other particulars mentioned there would have to be a compliance with the terms of the statute, even though no amendments were offered to the proposed bill, or if offered said amendments were accepted by the other party. *Page 376
It is contended, however, that the provisions of the subsection involved have application only where amendments are proposed and not accepted by the other party. If such construction were given the statute, there would be no provision as to procedure in case no amendments are proposed or if proposed are accepted. True, the statute does say that in such case the proposed bill and amendments, if any, "may be presented * * * to the judge for settlement without notice to the adverse party," but without the other provisions of the sub-section, which under appellant's theory would not be applicable, there is no provision giving the right (1) to deliver the proposed bill to the clerk for the court, or (2) to have the proposed bill forwarded to the judge if the latter is out of the county, or (3) to have the court designate the time he will settle the bill or any notice thereof, or (4) to have the court settle the proposed bill after the same is presented.
Nor do I see how it can be argued that under the wording of the statute a proposed bill with amendments which have been accepted is not included within the terms of the statute, when the wording of the statute expressly includes it. The statute certainly makes no differentiation between a proposed bill with amendments which are objected to and a proposed bill with amendments which are accepted, except that in the latter case no notice to the adverse party need be given in presenting it to the court. It specifically states, "The proposed bill andamendments must, within ten days thereafter," etc. (Italics added.) The wording of the statute contemplates that whether or not amendments are proposed the bill as proposed must be presented to the court (or the clerk) within ten days (1) from the date amendments are proposed or (2) from the date it is determined no amendments are proposed.
As pointed out above, as well as in our former opinion, there are very definite reasons why there should be a time limit on the presentation to the court of a proposed bill, irrespective of any proposed amendments. The language *Page 377 of the statute is susceptible of such an interpretation. I therefore wish to adhere to our former decision to the effect that the proposed bill, in the instant case, was not presented within the time allowed by the statute and the trial court therefore should have refused to settle the same. To construe that there is no limitation in the statute and then suggest that a reasonable time should be prescribed is adding to the confusion. Must there be a determination in every contested case that the bill was presented within a reasonable time?
The Utah case of Love v. St. Joseph Stock Yards Co.,51 Utah 305, 169 P. 951, is distinguishable and hence not applicable. The question involved in the Love case was whether the delivery to the clerk of a proposed bill of exceptions for the purpose of having the same signed by the judge was sufficient, the court holding that it was.
PRATT, J., dissents.