REHEARINGS DENIED.

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

THE

PACIFIC REPORTER.

VOLUME 106.

(17 Idaho, 435)

after counsel for the respective parties agreed upon such amendments, and the amendments so agreed upon were incorpo

SIMPSON v. PIONEER IRR. DIST. (Supreme Court of Idaho. Dec. 21, 1909.) NEW TRIAL (§ 131*)-STATEMENT ON MOTION-rated in the statement. The statement was EXTENSION OF TIME.

A judge or court has no jurisdiction to extend the time for preparing and serving a proposed statement on motion for a new trial after the time allowed by law or given by the court or judge has expired.

[Ed. Note. For other cases, see New Trial, Cent. Dig. § 268; Dec. Dig. § 131.*] (Syllabus by the Court.)

then delivered to the clerk of the court for the judge thereof. During the summer of 1907, and beginning of 1908, the district court was occupied for a considerable portion of the time with the trial of other cases. On the first day of the December term, 1908, the attorneys for the appellant called the matter up in court and asked for a set

Appeal from District Court, Ada County; tlement of said statement and that a time Fremont Wood, Judge.

Action by William A. Simpson against the Pioneer Irrigation District. Judgment for plaintiff. Motion to deny application for settlement of a proposed statement on motion for new trial. Motion granted, and defendant appeals. Affirmed.

Rice, Thompson & Buckner and Martin & Martin, for appellant. Neal & Kinyon, for respondent.

be set to hear the motion for a new trial.
Soon thereafter the attorneys for respond-
ent served and filed a motion to dismiss the
proceedings begun by appellant for the pur-
pose of settling said statement and objected
to the settlement thereof, in which motion
were enumerated 15 reasons for the dismiss-
al of said proceedings. After hearing the
matter, the court filed a written decision on
said motion, which decision was based up-
on the ground that the judge had no juris-
diction to make the order made on Novem-
ber 28, 1906, extending the time in which the
defendant might prepare, serve, and file its
proposed statement on motion for a new tri-
al. It appears from the record that an or-
der was made on August 28, 1906, extending
the time 90 days for the preparation and
service of said proposed statement.
pears also that on the 28th of November
another application was made for an ex-
tension of the time in which to prepare and
serve said proposed statement, and 90 days
was granted on that application. This ap-
plication was based on the stipulation of
respective counsel. On the 27th day of Feb-
ruary, 1907, on stipulation of counsel, an-
other 90 days was granted for the prepara-
tion and service of a proposed bill of excep-
tions. On the 27th day of May, 1907, on
stipulation of respective counsel, the court
extended the time in which to prepare and
serve a hill of exceptions or statement on
motion for a new trial until July 1, 1907.

It ap

SULLIVAN, C. J. This is an appeal from an order of the judge at chambers, refusing to settle a statement on motion for a new trial, and the refusal of the judge to pass upon the motion for a new trial. Judgment was entered on the 7th of June, 1906. Notice of motion for a new trial was given and the order was obtained from the court or judge extending the time for filing the proposed statement on motion for a new trial. A transcript of the evidence was ordered immediately after the entry of the judgment, and the court stenographer, because of the pressure of the court work, was unable to get out said transcript and deliver the same to the attorneys for the appellant until the 23d day of January, 1907. Counsel for appellant served their proposed statement on the attorneys for the plaintiff on June 9, 1907, and filed the same with the clerk of the court on July 1, 1907. The attorneys for the plaintiff applied to the attorneys for the appellant for an extension of time in which to propose their amendments to said Appellant contends that the action of the statement, which amendments were served court in the proceedings for a new trial and upon the attorneys of the appellants some refusal to settle and allow the statement time during the fall of 1907. Shortly there- was error. It will be observed from the For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 106 P.-1

a case of this kind it will not be presumed that by merely entering into a stipulation to extend the time for preparing a proposed statement or bill of exceptions they intended to confer jurisdiction on the judge or court that had theretofore been lost. In Bank of Commerce v. Baldwin, 14 Idaho, 75, 93 Pac. 504, 17 L. R. A. (N. S.) 676, the court had under consideration a question similar to the one here, and the court, speaking through Mr. Chief Justice Ailshie, said: "When the statement was presented for settlement, on motion of the adverse party, the same was stricken from the files, and the court refused to settle it on the ground that it had not been presented in time and that the court had lost jurisdiction to settle or allow it. The action of the court was clearly correct and in conformity with the repeated decisions of this court." In Swartz v. Davis, 9 Idaho, 238, 74 Pac. 800, the court held that the judge or court had no power to extend the time for preparing and serving a statement on motion for a new trial after the time for the settlement had expired. As bearing upon this question, see: Lydon v. Piper, 5 Idaho, 541, 51 Pac. 101; Hoehnan v. New York Drygoods Co., 8 Idaho, 66, 67 Pac. 796; Sandstrom v. Smith, 11 Idaho, 779, 84 Pac. 1060.

foregoing statement of facts that the court not incumbent upon them to do so, and in extended the time for preparing and serving the statement on August 28th for 90 days. Excluding the 28th of August, when the order was made, the 90 days would have expired on the 26th of November. Hence said order, made on November 28, 1906, was not made until two days after the time had expired under the order of August 28th, in which to prepare a statement. But it is contended by counsel for appellant that the respondent waived his right to insist that said order of the 28th was not made within the 90 days by reason of his counsel having stipulated on the 28th of November that the court or judge might extend the time for another 90 days, and on that stipulation the time was extended for 90 days, which 90 days from the 28th of November would have expired on the 26th day of February, and the record shows that within that 90 days no application was made for an extension of time, but it does appear that on the 27th of February, by stipulation of counsel, the court extended the time in which to serve and file said statement another 90 days; and on the 27th of May, under stipulation of counsel, the court extended the time for preparing and serving said statement until July 1st, and on the 8th of July, under stipulation of counsel, the court extended the time to respondent's counsel to serve their amendments to said statement until July 31, 1907. Thus it appears that the 90-day period given by the court in which to prepare and serve said statement had expired when the order of November 28th was made extending the time for another 90-day period; that the second 90-day period had expired before the court made the order of February 27th extending the time for another 90 days; and

that all of said extensions made on and after the 28th day of November were made by virtue of a stipulation with the counsel for respondent. And it is contended that their action in stipulating to extend the time after the time had expired was a waiver of the jurisdiction of the court to make such extension.

We cannot agree with that contention. While it is true counsel for respondent made several stipulations for extension of time,

The judgment appealed from must therefore be affirmed, and it is so ordered, with costs in favor of respondent.

AILSHIE, J., concurs. took no part in the decision.

STEWART, J.,

(17 Idaho, 432)

DENSEL v. ATLANTA MERCANTILE CO.
(Supreme Court of Idaho. Dec. 20, 1909.)
1. CORPORATIONS (§ 507*)—ACTIONS-PROCESS
-SERVICE-MANAGER.'

Under the provisions of section 4144. Rev. Codes, where the proof of service of summons recites that the summons was served upon the "manager" of the corporation (naming it), it is prima facie evidence of such service upon the corporation, as it will be presumed that such manager is the managing agent thereof, unless the contrary appears.

[Ed. Note. For other cases, see Corporations,
Cent. Dig. §§ 1971-2000; Dec. Dig. § 507.*]
(Syllabus by the Court.)

those extensions were no doubt made on the
presumption or theory that the application
for an extension was made before the court
lost jurisdiction of the matter, and we do
not think that the attorneys for respondent
intended to stipulate jurisdiction where the
jurisdiction had been lost by failure to make
application in the proper time, and when,
in fact, no jurisdiction existed to make the
order. While it is true the record was open
to respondent's counsel, and they might have
examined it and ascertained whether or
not the court had lost jurisdiction before ty; Edward A. Walters, Judge.
they entered into those stipulations, it was

2. CORPORATIONS (§ 507*)-ACTIONS-PROCESS
-SERVICE ON "MANAGING AGENT."

The term "managing agent," as used in section 4144, Rev. Codes, relating to the service of process on domestic corporations, is a generic term, and does not refer to any particular person or officer, like the words "president," "secretary," etc.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1971-2000; Dec. Dig. § 507.* For other definitions, see Words and Phrases, vol. 5, pp. 4320 4323.]

Appeal from District Court, Elmore Coun

Action by D. F. Densel against the Atlanta