
    PROGRESS SPINNING & KNITTING CO. v. DIXIE FIRE INSURANCE CO.
    No. 2431.
    Decided July 30, 1913
    (134 Pac. 1166).
    1. APPEAL AND ERROR — TIME TO APPEAL-MOTION FOE NEW TRIAL. The six months allowed in which to appeal dates from the denial of the motion for new trial, if notice of such motion is filed and served, as required hy Comp. Laws 1907, sec. 3294, within five days after the verdict in a jury case; hut where the notice is not served* and filed in time, the time to appeal dates from the judgment. (Page 304.)
    2. Appeal and Error — Presumptions—Notice of Motion foe New Trial. Where an appeal was taken within six months after the order denying a new trial hut not the judgment, and the record shows that notice of the motion for a new trial was not given in time, making the time to appeal date from the judgment, there is no presumption that the court extended the time to give notice of the motion for a new trial. (Page 306.)
    3. Appeal and Error — Time to Appeal — Motion for New Trial. Where the notice of motion for a new trial is not given within the time prescribed hy Comp. Laws 1907, sec. 3294, an extension of time to give such notice must be made before the expiration of the statutory time, in order to make the time to appeal date from the order denying a new trial. (Page 306.)
    4. Appeal and Error — Time foe Appeal — Recitals in Record— Dismissal. Where the record affirmatively shows that the appeal was not taken in time, in the absence of a showing that for some good and sufficient reason the appeal was nevertheless taken in time, the facts given in the record are controlling, and the appeal must be dismissed. .(Page 306.)
    Appeal from District Court, Third District; Son. G. W. Morse, Judge.
    Actiou by Progress Spinning & Knitting Company against the Dixie Fire Insurance Company.
    Judgment for plaintiff. Defendant appeals.
    
      Appeal dismissed.
    
      Boren X. Christensen, and D. 0. Willey fur appellant.
    
      Stewart, Stewart & Alexander, for respondent.
    
      
       Felt v. Cook, 31 Utah, 299, 87 Pac. 1092.
    
    
      
       Insurance Agency v. Investment Co., 35 Utah, 542, 101 Pac. 699.
    
   FRICK, J.

This is an action npon a policy of insurance to recover loss by fire. Tbe respondent bas interposed a motion to dismiss tbe appeal upon various grounds, one of wbicb is tbat tbis court is without jurisdiction, because tbe appeal was not filed witbin tbe time required by our statute. Tbe record discloses tbe following facts:

Tbat tbe jury returned a verdict for respondent on tbe 24th day of October, 1911; tbat judgment was entered on tbe verdict on tbe same day; tbat appellant served and filed its notice of intention to move for a new trial on tbe 20tb day thereafter, to wit, on tbe 13th day of November, 1911; tbat tbe motion for a new trial was denied on April 27, 1912; and tbat notice of appeal was served on tbe 14th day of October, 1912.

By merely having recourse to tbe date on wbicb tbe motion for a new trial was denied and tbe date on which tbe notice of an appeal was served, it appears tbat tbe latter notice was filed witbin six months after tbe motion for a new trial was disposed of, at wbicb time, if tbe notice of intention to move for a new trial was filed in time, tbe six months witbin wbicb tbe appeal must be taken in tbis jurisdiction began to run. Tbis is conceded by respondent’s counsel; but in answer thereto they contend tbat tbe record shows tbat the appeal was, nevertheless, not taken in time. In tbis connection counsel insist tbat tbe record affirmatively shows tbat tbe notice of intention to move for a new trial was not served or filed witbin tbe time required by statute, and hence tbe notice served and filed in tbis case was impotent, and could not extend tbe time witb-in wbicb to appeal.

In referring to tbe order denying tbe motion for a new 'trial, wbicb order, by Comp. Laws 1907, section 3197, as amended by Laws Utah 1911, p. 136, is now a part of tbe judgment roll, we observe tba,t no reason whatever is stated therein why tbe motion for a new trial was denied. For angbt that is made to appear, it may have been denied because it was not filed within tbe time fixed by tbe statute. Comp. Laws 1907, section 3294. That section, in case of •trial to a jury, provides that “tbe party intending to move for a new trial must within five days after tbe verdict of tbe jury . . . file with tbe clerk and serve upon tbe adverse party a notice of intention” to move for a new trial, • designating therein tbe grounds upon which be relies. Tbe record, therefore, affirmatively shows that tbe notice of intention to move for a new trial was not served and filed 'within tbe time required by statute. .In view of this tbe notice that was served and filed in this case could not have "the effect of extending tbe time for appeal, wbicb expired :six months from tbe 24th day of October, 1911, to wit, on tbe 25th day of April, 1912, or nearly six months before this appeal was in fact taken.

But counsel for appellant contend that tbe trial court bad the power to extend the time within wbicb to file tbe notice <of intention to move for a new trial, and that we ■should assume that it bad exercised such power. TJn-■fortunately for appellant such is not tbe law. Where upon tbe face of tbe record it appears that an appeal is taken after tbe time allowed by tbe statute, it devolves upon the appellant to show that it has a legal right to invoke tbe jurisdiction of this court for some good and sufficient reason. 'This it could do by showing that tbe time within wbicb the filing of notice of intention to move for a new trial was, within apt time, extended by tbe trial court, by making an •order to that effect within tbe time allowed by statute, and by making such an order a part of tbe record on appeal. If the record in this case disclosed that an order extending tbe itime bad been made by tbe trial court, we could then determine whether it was made within snch time that it would have the effect of extending the time within which an appeal might be taken.

In passing upon this identical question in a somewhat different form, Mr. Justice Straup, in Felt v. Cook, 31 Utah, 299, 87 Pac. 1092, said:

“Failing to show that an application or showing was made for leave to file a motion for a new trial, and failing to show that the-application was made within the time allowed by the statute,, the appellant was not in position to invoke the jurisdiction of the; court to entertain the motion.”

If, therefore, the notice of intention was not served within time, the trial court was without power to extend the time for appeal.

The record in this ease, therefore, affirmatively shows that ■ the appeal was not taken in time, and, in the absence of a. showing that for some good and sufficient reason the appeal was, nevertheless, taken in time, the dates given in the record are controlling. (Insurance Agency v. Investment Co., 35 Utah, 542, 101 Pac. 699.) This case is therefore controlled by the ruling of Felt v. Cook, supra, under which ruling the appeal cannot be sus-j tained.

It follows that the appeal should be, and it accordingly is,, dismissed. Costs to respondent.

McCAKTY, C. J., and STPlAUP, J., concur.  