Hole v. Takekawa

This is an appeal by plaintiff from an order denying his motion for relief under section 473 of the Code of Civil Procedure from the effect of his failure to present within the time allowed by law his proposed bill of exceptions for use on a motion for new trial in the above entitled action. The judge refused to settle such bill on May 8, 1911, on the ground that the same had not been served within the time required by law. On June 9, 1911, the motion for relief was made, the grounds thereof being “mistake, inadvertence, surprise and excusable neglect,” and this motion was denied on June 16, 1911.

The bill of exceptions on appeal from the order denying relief shows that the action was one for the specific perform

Except in so far as the time to serve the proposed bill of exceptions on motion for a new trial was extended by réason of the stipulations of the parties, plaintiff’s time expired with the expiration of ten days from the date of the service of his notice of intention to move for a new trial. (Code Civ. Proe., sec. 659, subd. 2, and sec. 650.) The mere pendency of the motion to amend, subsequently made by plaintiff, could not extend the time. And in so far as plaintiff’s motion was one to amend or change any finding of fact, it was entirely unauthorized by any provision of law, and could not legally be granted. Sections 663 and 663a of the Code of Civil Procedure authorize no such procedure. The language of these sections is entirely free from ambiguity and leaves no room for doubt as to what is authorized thereby. As applied to a judgment based upon findings of fact made by a trial court, the sections simply authorize a motion to vacate the judgment •to make it and the conclusions of law consistent with and supported by the findings of fact, and do not authorize any change in any finding of fact. “Section 663 of the Code of

We will assume, going as far as we can in favor of plaintiff, that the effect of the stipulation of November, 1910, which in terms abrogated all previous stipulations, was to so extend plaintiff’s time to serve his proposed bill of exceptions that the same commenced to run “on the day on which the order is made on such motion, ’ ’ which was December 16, 1910, or at least as early as the day on which defendant was notified of the order,—namely, December 17, 1910. This gave him not longer than ten days from the date last mentioned, and as no stipulation or order for further time was given,- his time expired at the expiration of said ten days. The trial court was therefore compelled to hold that the proposed bill served on March 27, 1911, was not served in time.

We are not prepared to hold that there would have been any abuse of discretion on the part of the trial judge in denying the motion for relief, even if the notice of March 2, 1911, had not been given. It may well be argued that there was nothing shown to reasonably warrant any reliance on the part of plaintiff’s attorneys upon the idea that new findings and judgment could legally be filed or given or that the time to

However this may be, in view of the notice of March 2, 1911, twenty-nine days prior to the attempted service of any bill, and the admitted statement of Mr. Noyes at the time of serving such notice, we are clear there is no foundation for any claim that the court was guilty of any abuse of discretion in holding that plaintiff was not entitled to be relieved from his default. Even if it was thought that the attempted change in the finding of fact was effectual, it was clear from the terms of the order signed by the judge and filed, that the change was effected by the making and filing of the order, and that it was not necessary to have a new set of findings, including the amendment, signed and filed, or a new judgment given. The notice given to the attorney for plaintiff on March 2, 1911, and the statement of defendant’s attorney made to plaintiff’s attorney at the time of the-service of such notice, clearly conveyed to plaintiff’s attorney knowledge that defendant’s attorneys did not intend to prepare or present any additional findings or judgment. Plaintiff’s attorney had no information that the judge desired to make or file any additional findings or judgment, and no reason is apparent why he might conceive that the judge would so desire. No reason at all is apparent why plaintiff’s attorney might fairly assume that the time to present plaintiff’s proposed bill of exceptions if it had not already long since expired, would not certainly expire with the expiration of ten days from March 2, 1911, in the absence of further stipulation or an order of extension.

It is well settled that the trial court is invested with a large discretion in the matter of such applications as this, and that its action will not be disturbed on appeal unless it is clearly made to appear that such discretion has been abused. This is true whether the application be granted or refused. (Moore v. Thompson, 138 Cal. 23 , 26, [ 70 Pac. 930 ].) Of course, where the trial court has any serious doubt as to the matter, it should resolve the doubt in favor of the application, so that the full merits of the litigation may be presented. But in this ease, as we have said, we are satisfied that it can

The order appealed from is affirmed.

¡Shaw, J., and Sloss, J., concurred.