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Show TUESDAY, MARCH 17, 1970 FINANCING STATEMENTS 7673 F jrou-'hj'o ::nn to Fin; Franklin D to iak. Fin; Wilford Kicholes, 2165 to ltoche, 7a17 20th fi, slo S hh mis Flatt., 11?6 F Alan Killer, sic to 7333 Pinnen Dr, k; Stereo Valle1 Dr, fl.drediro, sic 3 to Jen Fin; hh ftfs C enuirj sic Archuleta, 672 3 6th lationwidn Fin; hh "ds A 3 sic to a ti Pm", .wide FJj.j hh eds 01 Cl.svbum Const, 161? 3 P.r.d sic to W, veldir.ir; .elder 'J 3 T.'j51 Steel to " 3 .JeLdiv: .voider Do:.9ld Gran-- L Robr Ave, sic In-"- :. Hewitt, u765 3 to sic to , 15-- Johnson, ?o3l to SIM, Cr patriot veiss, to Deseret sl.c ! collection d'r.a Ir.c, .'.cbo:., oks car 1397 dr, 3927 Ridgecrest Cr Un; cars Canoer 'SIHL Office Church LD3 hh ?ds Laraine M Buchanan, 2551 H 65IO S, sic to LDS Church Office Cr Un; hh yds Gale C Hmerv, 6016 Ralnh St, Lockhart; hh yds sic to Sex sic to 19ul Ireseder, Caoital 'Goods Irvire, sic to at 6675 3, Saoelir; hh at House 2r:d S, 1230 W 6910 S, ids cor.s ; Sosenaldo Sisr.eros, oO Frank ' strom, oth t3 Fid Ird Cr; Am to Whitmore Ct sic to Interlace Ihiift: H L elc to W ak; Picture r'i ds 6 L. M. Cummings, Clerk This action was for specific performance of a contract of sale of real property. The trial court held specific performance was not appropriate but awarded plaintiffs a judgment for damages. The judgment was entered on the 24th of January, 1969. On the 6th of February, 1969, defendants filed a motion for a new trial or in the alternative to amend the findings and judgment. This motion was untimely, since it was filed more than ten days after entry of judgment, Rules 59(b) and 52(b), U. R. C. P. On the 26th of March, 1969, after the time to appeal had expired and this court no longer had jurisdiction to entertain an appeal, plaintiffs filed a motion to strike defendants' motion for a new trial because it was not timely filed. On the 31st of March, defendants filed a motion for relief from late filing. On the 14th of April, the trial court denied plaintiffs' motion to strike, found it unnecessary to rule on defendants' motion for relief from late filing, and then denied defendants' motion for a new trial. Defendants immediately appealed to this court, and plaintiffs filed a motion to dismiss the appeal, which was granted on June 2, 1969. Thereafter, defendants noticed up their motion for relief from a late the district court. By interlineation to their original motion, which in filing merely pleaded inadvertence, they claimed relief from the judgment under Rule 60(b)(1), U. R. C. P. They asserted that they were entitled to relief because of the inadvertence, mistake, or excusable neglect of their attorney in not timely filing their motion for a new trial. Defendants contended that the judgment was signed and delivered to the clerk on the 24th of January, but the clerk did not photograph and mail a copy to defendants' attorney until the following Monday, January 27th. The attorney, by affidavit, stated that he believed that he had until the 6th of February in which to file the motion, which was ten days from the 27th of January, the date appearing on the clerk's mailing certificate. The affiant claimed that he was unaware and inadvertently failed to notice that the time for filing his motion expired on February 3, 1969. .lobii.sor Hunt, box j bTi De".Jev L : TILS 371 5, Cr IV.; Stamo Lorraine Press, sic to J Ruesch, sic to 5 .n W W, Gene Pollun, 11 58 'i 7th S, EIM Cr Un; cars Snowmobile Loo J J.r.eo 1530 S !id-v- ale Pickuo hh yds IV.; A Fir.: hh eds er. S 770 R, Cr 'Jh; hh stfs Tel S L H Jordan Donald 2196 , T70o Cochise Dr, rir. ; fum ooL Jhnnsori, to . at er hh atfs Frederick Linford, 7010 FILED March 12, 1970 CALLISTER, Justice: Salnh 3 Keddinsrton, 1339 Kensington Cr Uh Ave, sic to S L Tel car Cr Un; Paul 3 Dixon, 1 03i Atkin Ave, sic to atioi.wida Fin: hh rris car Uro Cr Uh; hh srds Jonathan Bennett to sic to 6631 Larchwav, William M. Hods on and Rose B. Hods on, his wife, Defendants and Appellants. St, sic Yuma Uavle Woodward, 219 S 6th 3, Sandy S L Tel tHt.d Cr IV.; car hh eds David Robert ?. Austin, 733 Windsor, Nationwide Fin; hh ctfs ,yw. to Tel S L Glenn Lorraine Burton, 1960 I 1700 S, sic to Granite ; at 3k; hh vds A1 L to Cr'i" T rordwrar. , 627c Highland sic to .etro Fin; fum Farin' v. Kid vale State, S tfs hh PAGE FOUR THE DAILY RECORD ; i On June 23, 1969, the trial court granted defendants' motion for relief from late filing upon the ground of mistake and excusable neglect of the clerk and inadvertence and excusable neglect of counsel. hh fltfs 6C00 S, Hurra v hh Tds On June 27, 1969, plaintiffs applied to this court for an extraordinary writ to prohibit the trial court from hearing defendants' motion for a new trial; this court denied plaintiffs' petition. i'Vrol L Pettit, 1560 S 7200 3, sic to Grar.it e Fum; hh Rtfs aaurh, 101 "1st Ave 3, sic to Caoitol Thrift; fum and eouiD Geo After a hearing, the trial court entered an order on July 23, 1969, denying defendants' motion for a new trial, and defendants appealed. Gler. Stewart, 2999 Rosemary Dr, sic to Lockhart; hh rtfs uavid to -1 Her. xwflll, 215 '! 7 930 S, Sandv F.n; hh ds ; urvar.t I.ur.lev, 2911 F3n; hh zds 8th S sic to 1, Bon Jon Lockhart; TV Robert L William?:, 1665 to Valley ?k ; C""?3er hr. sic to cor.s yds David a 3d par, 5131 to jnfial 6'-l6- S .... ;.arris .7, cer 50a 3, sic 33C0 W Stor.e, 15 Hartwell St, T Chas J Vialnardo, 330 S 9th W, sic to Ut St 9r.n Cr 'J:.; FickuD Camper Leslie G Pettv, 211? Green 5t, sic to JT; cor.s Hs Christina Palacios, 191s !.evada St, Cr Un ; hh rds sic to Ut St Ger.e y Ar.dries to Ut St A Jorrr tu Slir.er, .n l.-- St, sic 1566 Concord rtfs cars Cr Ur : hh Sedlacek, ? 6Q30 1 5.3 Ut St Hro Cr 3, !id-v- ale rds car hh 15 ; Andy Far.os, A Par.os A Co, 50? Moor Dale dr, sic to Ut St Vn Cr Ur.; hh ds car rdvon to Ut Crme, W St jert D Jill X to Ut rJrco iloC .1 chi ran Ave, sic sds Cr Un; hh S, sic cars Ut St i'lr.p Cr Un; W sic Trlr 5th S, Boat Mtr to Clinton 3 Day, 3062 Fortur.a Dr, sic to Ut St Zn Cr Ur.; Lathe car to Ut :,':T to Ut But tars, 6769 St .0 ?pr0 A' Cr 15.; Stereo S, 3rar- .- hi chard P Bond, 2 62 5 S 19 7, sic to 3LC Water Dent Tmn Cr Ur.; cars hh zds Li; da 3 L S Hoffran, 1675 3 20 Tel !'.d Cr IV.; Stereo At the time that plaintiffs filed their first motion to dismiss the appeal in this court in May of 1969, defendants did not file any responsive pleadings. It was only subsequent to the dismissal of the appeal that defendants attempted to procure the relief provided under Rule 60(b)(1), The initial motion for relief from late filing, upon which the trial judge did not pass at the hearing on plaintiffs' motion to strike, did not invoke Rule 60(b)(1) and plead for relief from a final judgment provided thereunder. When this court has once dismissed an i.urrav to 6715 S, r'.earrs Camier ?rds Lowell J Fer.rose, 7-- .a rvir. 'eriv ether, urra y to Seaboard arry rrowhead L. , . Cr; hh rtfs Co mm . Lee hi 6 hdview Dr, Career FLi. ; 5567 S 6220 .9, Hearns ibur.r, to Canitcl Thrift; fur. a n'l u appeal because it has no jurisdiction after the time for appeal has expired, it is powerless to reinstate the appeal. There is no manner by which the district court can then subsequently confer jurisdiction upon this court. , lc56 Cor.cord Jt, sin to Canitoi Thrift.: fur. and erjin Appeal dismissed; costs to respondents. Joh.'. l to .er. WE CONCUR: 1923 sic to ds at Batterv Sales; j-- t,o An vu J Henrichser. , 11 38 8 56OO S, sic to 3 L Tel Firo Cr Un; car Piano 1 sic 1 . i'erde, sic jatteries Co, 526 R. L. Tuckctt, Justice Roosevelt, to to Kid-va- F. Henri Henriod, Justice le A. H. Barrett, 660 Cakley 3t, sic .'dller Fin; fur. S V .cDuff, .iller iLr.; 3119 fum S 2300 sic In The Supreme Court Of The State Of Utah Brigham G. Holbrook and' Betty Holbrook, his wife, Plaintiffs and Respondents, ale Fain, sic to Zoiwlas : Carlj ,. , 6922 3 3rd T, to Fin; Boat rCtr Trlr Ronert ?.d-v- rat jk; Trlr Gle V Bir.eham, 1:20 S John Law's Serv; ouin JoLn L ::!0 Fair-roun- I 12th S rlr. ; hh yds to Birch, 5211 Tartnoore Rd, sic St '".o Cr 15. j hh rds car Gerald i;rr.3 Leavitt, 6"ol J to Cor. Cr; hh Pearl Pc'llarH L W, Defendants' motion for a new trial was not timely filed under Rules 52(b) or 59(b), and under Rule 6(b) the trial court may not extend the time for taking any action under these rules except to the extent or under the conditions stated in them. The overriding principle of all the aforementioned rules is to assure the finality of judgments. 2 peter .ierr mam. Hunsakr, 1155 o 5 '160 St 3nn Cr Ur.; hh ,Tds 8well, 1660 Arlir., h'jbO S 6710 to at Fir.; hh yds car Gar1 . . . the time within which an appeal may be taken shall be one month from the entry of judgment appealed from unless a shorter time is provided by law, except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding one month from the expiration of the original time herein prescribed. The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, (Emphasis added. ) sic to Loncon, 2999 3 2965 S, C Plaintiffs contend that this appeal should be dismissed. We agree; when this court initially dismissed the appeal in June of 1969 for lack of jurisdiction, the matter became final. Rule 73(a), U. R. C. P. , provides: No. 11767 Crockett, C Ellctt, Justice J. , concurs in the result. The date of entry of the judgment appeared thereon, counsel apparently observed the date of the mailing certificate. 2. See Anderson v. Anderson, i Utah 2d 2Y7, 280," 282 P. 2d 64! (1955), wherein this court observed that Rule 73(a) prescribes the only circumstances under which the court may extend the lime for iiling notice of appeal. Neither Rule 6(b), granting the court power to extend where a failure to act m time is due to excusable neglect generally, nor Rule 60(b)(1), authorizing the court to relieve from final judgment for inadvertence or excusable neglect applies where the notice of appeal has not been filed in time. The purpose of Rule 73 is to make jurisdictional a failure to file the notice of appeal on time. 1. |