Buis v. Lindauer Corp.

This is an appeal from a judgment of nonsuit which was rendered against the plaintiff in an action for damages for personal injuries sustained as a result of alleged negligence.

The appeal is presented upon a purported bill of exceptions which was settled by the trial judge, over the objection of the defendants, fifteen months after the judgment was entered. The plaintiff failed to present his proposed bill of exceptions to the judge for settlement within the time limited by the provisions of section 650 of the Code of Civil Procedure. Upon plaintiff’s application pursuant to the provisions of section 473 of the Code of Civil Procedure, relief from that default was granted by the court, and the bill of exceptions was thereupon settled.

It is contended the court was without jurisdiction to grant the relief sought under section 473, supra, for the reason that the application was not made within six months of the time of default. It is also asserted the court was without jurisdiction to settle the bill of exceptions, and that the judgment of nonsuit should therefore be affirmed, since the record of proceedings lacks due authentication and the presumption follows that the judgment is fully supported.

The defendants’ effort to appeal from the order granting plaintiff relief under section 473 of the Code of Civil Procedure from his failure to present and settle a bill of exceptions, within the time prescribed by section 650 of the Code of Civil Procedure, is ineffectual. An order

The court was, however, without jurisdiction to entertain the motion or grant relief from plaintiff’s failure to present his proposed bill of exceptions within the time limited by the provisions of section 650 of the Code of Civil Procedure, for the reason that this application was not made within six months from the time of default. (14 Cal. Jur. 1062, sec. 109; In re Morehouse, 176 Cal. 634 [ 169 Pac. 365 ]; Title Ins. & Trust Co. v. King Land & Imp. Co., 162 Cal. 44 [ 120 Pac. 1066 ]; Estate of Grivel, 208 Cal. 77 , 81 [ 280 Pac. 122 ]; Jones v. Superior Court, 78 Cal. App. 163 [ 248 Pac. 292 ].) It follows that the order granting relief in the present case, which was applied for and made more than a year after the default occurred, is without authority of law and therefore void. No motion for new trial was ever made in this case. No order was made extending the time in which to present a proposed bill of exceptions. The stipulation extending the time for one month in addition to the time allowed by law is the only record evidence of any such extension of time. The alleged oral stipulation extending time was made some time in June, 1927. The attorney who is alleged to have made this oral agreement died October 31, 1927. The plaintiff was then in default more than three months. There was then ample time to have asked for relief pursuant to the provisions of section 473 of the Code of Civil Procedure. No such application was made for many months thereafter. The court had no jurisdiction to entertain the motion for relief.

Assuming, in accordance with the authorities of Houghton v. Superior Court, 128 Cal. 352 [ 60 Pac. 972 ], and Gay v. Torrance, 143 Cal. 14 [ 76 Pac. 717 ], that when amendments to a proposed bill of exceptions are served that the appellant is not confined to a period of ten days thereafter, but may present the bill and amendments to the jndge for settlement “within a reasonable time thereafter”, it may not be said such presentation is made within a reasonable time when eight months is permitted to elapse after the

In spite of the fact that the defendants’ effort to appeal from the order granting relief was ineffectual, the court was without jurisdiction to make the order, and it is therefore void. This order was made over the objection of the defendants. The invalidity of this order may therefore be raised by the defendants on plaintiff’s appeal from the judgment of nonsuit.

Since the order granting relief from the default and the order settling the proposed bill of exceptions are invalid, it follows that the appeal from the judgment of nonsuit is unsupported by any authenticated record of evidence or proceedings, and the judgment must be deemed to be fully supported by the evidence.

The defendants’ appeal is dismissed. The judgment is affirmed, defendants to recover costs.

Preston, P. J., and Plummer, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on October 10, 1931, and a petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 9, 1931.