Lewith v. Rehmke

Plaintiff instituted this action to cancel a deed to certain real property and to quiet his title thereto. The complaint alleges that defendant procured the deed from plaintiff by certain threats made at a time when plaintiff was in a weakened mental condition and while defendant was acting as the fiduciary agent of the plaintiff. The cause was tried by the court sitting without a jury. From the judgment entered for defendant the plaintiff prosecuted an appeal. However, the proposed bill of exceptions to be used on such appeal was not prepared or served within the time limited by law. Appellant’s default was due to his reliance upon certain orders of the trial court purporting

Upon the discovery of his error, the appellant moved under section 473 of the Code of Civil Procedure to be relieved of his default. The court below denied the motion and plaintiff appealed therefrom. It is this latter appeal to which our attention is now directed, the disposition of which will, of course, have a material bearing upon the ultimate determination of the appeal from the judgment.

Any discussion as to the propriety of the trial court’s action refusing to relieve the appellant from default in the preparation of his record must necessarily be prefaced by a reference to the settled principle of law that motions for relief from default under the remedial provisions of section 473, supra, are addressed to the sound discretion of the trial court, the exercise of which, in the absence of a clear showing of abuse, is not to be interfered with by an appellate tribunal. (Waybright v. Anderson, 200 Cal. 374 , 377 [ 253 Pac. 148 ].) However, the existence of this salutary rule did not prevent this court from reversing an order refusing relief under circumstances substantially identical with

While it is true, as urged by the respondent herein, that there appeared to be additional reasons suggesting the granting of relief to the appellants in the cited case, we were actuated in our reversal of the order in that case principally, if not solely, because of the appellants’ reliance in good faith upon the void orders of the trial court purporting to extend the time for the preparation and service of the proposed bill of exceptions beyond the statutory period. The present case falls squarely within that rule and, in our opinion, warrants relief to the appellant. This will insure a hearing on the merits, which it is always the policy of the law to favor. (Waybright v. Anderson, supra; O’Brien v. Leach, 139 Cal. 220 [ 72 Pac. 1004 , 96 Am. St. Rep. 105 ].)

In announcing our conclusion on this phase of the case we experience no difficulty with Ingrin v. Epperson, 137 Cal. 370 , 372 [ 70 Pac. 165 ], relied on by the respondent. In

We are next confronted with an appeal from an order denying plaintiff’s motion, made under section 662 of the Code of Civil Procedure, to vacate and set aside the findings and judgment and to reopen the case for further evidence. This evidence, as appears from the affidavit in support of the motion, consisted of two letters written by the defendant shortly before the deed here sought to be canceled was obtained by defendant and wherein it appears that defendant, as alleged in the complaint, was relying upon certain threats to procure the deed. Discovery of these letters was made by the plaintiff subsequent to the trial.

Preliminarily, respondent requests that we reconsider the question of the appealability of the order refusing to vacate the judgment and reopen the case, which question was heretofore decided adversely to her. (Lewith v. Rehmke, 215 Cal. 241 [ 9 Pac. (2d) 297 ].) We find it unnecessary at this time to pass upon either the appealability of such order or the propriety of the trial court’s action in entering the same. At the conclusion of the trial of the cause the plaintiff duly moved for a new trial upon the ground, among others, of “newly discovered evidence, material to the plaintiff which he could not with reasonable diligence have discovered or produced at the trial.’’ The motion for a new trial was denied. Inasmuch as the order denying the same is reviewable upon the appeal from the judgment, the trial court’s action in refusing to reopen the case for the introduction of the asserted newly discovered evidence, which newly discovered evidence was also urged in support of the motion for new trial, may be considered and passed upon when the appeal from the judgment comes on for hearing on its merits. In fact, the matter can best be determined at that time for we will then have before us the duly settled bill of exceptions which is indispensable to a proper determination of the relevancy, competency and materiality of such evidence. This being so, the matter is now purely

For the foregoing reasons, the order denying plaintiff’s motion for relief from default in the preparation and service of his proposed bill of exceptions to be used on the appeal from the judgment is reversed, with. directions to the court below to settle the same in accordance with law, all other matters and questions to abide the consideration and disposition of the appeal from the judgment.

Preston, J., Langdon, J., Curtis, J., Shenk, J., SeaweII, J., and Thompson, J., concurred.