Opinion
February 7, 1962 —
March 6, 1962.
APPEAL from two orders of the circuit court for Rock county: ARTHUR L. LUEBKE, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Cleland P. Fisher of Janesville.
For the respondent there was a brief by Dougherty, Campbell, Brennan Steil, and oral argument by Paul M. Ryan and George K. Steil, all of Janesville.
Application in behalf of defendant Donald Raye for an extension of time in which to settle a bill of exceptions. Judgment in the action had been entered under date of September 27, 1960, in favor of plaintiff Richard Millis for $10,379.25. Notice of entry of this judgment was served upon defendant's counsel on September 29, 1960, and the time for service of a bill of exceptions expired December 28, 1960. Following entry of judgment, defendant's counsel had promptly ordered a transcript of the testimony from the reporter, and such transcript was made available to counsel on December 7 or 8, 1960. On March 27, 1961, defendant's counsel served upon plaintiff's counsel a notice of appeal from the judgment and also a verified petition praying for an order of the court extending the time for serving and perfecting the bill of exceptions. The petition stated that the grounds for counsel's delay in perfecting and serving the bill of exceptions, and in applying for an extension of time in which to do so, were:
"(5) That on or about December 14 or 15, 1960, petitioner's attorney, Cleland P. Fisher, was compelled to prepare an extensive report covering services as trustee in an extended bankruptcy matter covering a period of approximately four years, and that it was a time-consuming operation and interfered with the ability of the said Cleland P. Fisher to prepare the bill of exceptions; that about the same time it was also necessary to prepare tax returns covering a period of several years to avoid certain penalties which were proposed; that the office secretary of the office of petitioner's attorney was unable to complete all of the work which was scheduled and it was difficult to get additional and competent office help to prepare the bill of exceptions so as to have the same available prior to the time when the same should be served.
"(6) That petitioner's attorney has used such diligence as he has been able to, to prepare the bill of exceptions and the same is now available with the exception of the necessity of attaching certain exhibits to said bill of exceptions; that the failure to have prepared and served the bill of exceptions within the proper time limit is believed to be due to cause and excusable neglect.
"(7) That the office secretary for petitioner's attorney during the months of December, January, and February, was able to work only part time and petitioner's attorney had to rely upon inexperienced stenographic assistance in completing the necessary papers to incorporate into said bill of exceptions."
A hearing was held upon the petition, and the circuit court filed a memorandum opinion in which it determined that sufficient cause had not been shown for the granting of an extension of time for excusable neglect under sec. 269.45 (2), Stats. The memorandum opinion contained this comment:
"In the instant case, the transcript was available three full weeks before the time expired for serving the bill of exceptions. There are few exhibits and no books or records among the exhibits. The attorney for the defendant is an experienced trial lawyer with extensive appellate court background. However, he made no effort to seek the assistance of plaintiff's counsel or of the court from the time in December. when he knew he would have difficulty, until the 27th of March, a period of some fourteen weeks."
Pursuant to the memorandum opinion, an order was entered on June 8, 1961, denying the application for an extension of time to serve and file the bill of exceptions. Thereafter, defendant moved for review of this order. In support of this motion, defendant served and filed a further affidavit of his counsel which stated:
"That affiant states that within a week of receiving the transcript of the testimony, he started on the work of preparing the bill of exceptions, and a portion of the necessary formal parts and additions, including copying of requested instructions, were dictated; that his secretary was unable to get the work out immediately, and thereafter was working only part time. That affiant's office consisted of affiant and his senior partner, who also had work which had to be completed.
"That affiant was interrupted in said work by the pressure of the necessity of getting out tax returns for a period of several years to avoid substantial penalties and possible prosecution, and with the pressure of the work existing and his secretary's inability to work more than part time, it was impossible to complete the bill of exceptions prior to the 29th of December, 1960, and it was impossible for his secretary to turn out any more work than she did, and it was impossible during said period because of said circumstances to make an application for extension of time.
"That said action had been bitterly contested on both sides, and with the state of mind of the parties it was not to be expected that counsel on either side would be authorized by their respective clients to grant or receive favors. That affiant was unable to get relatively competent help to assist him in completing said bill of exceptions until the second week in March, 1961, and such help was then available only two hours a day.
"That during the period of January until February 15th, farmers' tax returns had to be completed and filed. That there was the necessity of completing approximately forty (40) pages of typing material to incorporate into the bill of exceptions and to compare a substantial part of such material.
"Upon the completion of said work, affiant then moved the court for an order for an extension of time granting him leave to serve and file the bill of exceptions, such bill of exceptions then being in shape to serve and file."
The motion for review was denied by order entered July 14, 1961. Defendant has appealed from both the original order of June 8, 1961, and the later order of July 14, 1961.
The sole issue on this appeal is whether the trial court abused its discretion in denying the application for an extension of time in which to serve the bill of exceptions. Hupf v. State Farm Mut. Ins. Co. (1961), 12 Wis.2d 176, 181, 107 N.W.2d 185. Inasmuch as this application was not served until after the expiration of the ninety-day period required by sec. 270.47, Stats., the provisions of sub. (2) of sec. 269.45 govern the application. Sec. 269.45 provides:
"(1) The court or a judge may with or without notice, for cause shown by affidavit and upon just terms and before the time has expired, extend the time within which any act or proceeding in an action or special proceeding must be taken, except the time for appeal.
"(2) After the expiration of the specified period or as extended by any previous order, the court may in its discretion, for like cause, upon notice, extend the time where the failure to act was the result of excusable neglect; except the time for appeal."
Defendant's counsel urges that the trial court did not give due consideration to the 1950 revision made in this statute whereby the word "good," which preceded the word "cause" in both subsections of this statute, was stricken. The liberalizing effect of this 1950 amendment was duly considered by this court in Miller v. Belanger (1957), 275 Wis. 187, 81 N.W.2d 545, and Syver v. Hahn (1958), 4 Wis.2d 468, 90 N.W.2d 632. Both these cases were cited in the memorandum opinion of the learned trial court.
However, the weakness in defendant's position is not that his affidavits did not set forth cause, such as it was, for his delay in preparing and serving the bill of exceptions. Rather it is the lack of justification in these affidavits for counsel's failure to act until approximately fourteen weeks had elapsed after the expiration of the statutory ninety-day period. The statutory words "excusable neglect" refer to the failure to act with respect to applying for an extension of time within which to serve the bill of exceptions as well as to the failure to serve the bill.
Defendant's counsel received the transcript of testimony from the reporter three weeks before the December 28th deadline for serving the bill. This should have alerted him to the necessity of either preparing and serving the bill or applying for an extension of time in which to do so. It probably would not have required more than half an hour of counsel's time to have dictated a petition for extension, and an ex parte order granting same, and submitted them to the trial judge. Even if the press of other business just prior to December 28th caused counsel to overlook the running of the ninety-day period, he should have applied for the extension within a reasonable time thereafter.
In Valentine v. Patrick Warren Construction Co. (1953), 263 Wis. 143, 170, 56 N.W.2d 860, this court stated:
"The words `for like cause' of the above statute [sec. 269.45 (2)] mean that the cause for granting an order extending time to serve a bill of exceptions is the same after the expiration of the ninety-day period as before. However, that which may have been `excusable neglect' which delayed the filing of the application for extension beyond the ninety-day period can thereafter cease to be `excusable neglect' due to the lapse of further time."
In that case the time for serving a bill of exceptions expired on November 5, 1951, but appellant did not receive a copy of the transcript until late December, 1951. However, no application for an extension was filed until March 31, 1952, even though appellant knew long before the latter date the reasons why it was unable to serve the bill sooner. Despite the fact that the record was voluminous and that there were 121 exhibits, this court stated that had it been passing on the question originally, rather than on review of a trial court order granting an extension, it would have denied the application because of the long delay in applying for the extension. However, because of the large degree of discretion vested in trial courts under sec. 269.45, Stats., this court affirmed the order granting the extension.
In a recent case involving quite-similar facts, Jolitz v. Graff (1960), 12 Wis.2d 52, 106 N.W.2d 340, this court held that counsel's affidavit, to the effect that the press of other business prevented his application for an extension of time to file a bill of exceptions, was insufficient to support the granting of an extension. In that case the notice of entry of judgment was served on October 5, 1959; the time to serve the bill of exceptions expired January 4, 1960; and counsel's application for an extension of time was not made until March 30, 1960. Thus, counsel in that case was actually less delinquent than counsel in the instant case.
We find no abuse of discretion on the part of the trial court in finding that the conduct of defendant's counsel, in delaying until March 27, 1961, to apply for an extension of time, did not constitute "excusable neglect" within the meaning of sec. 269.45 (2), Stats.
By the Court. — Orders affirmed.