Shaw v. Superior Court

Application for writ of mandate. It appears from the contents of the petition filed therefor that petitioner proceeded to take an appeal from an adverse judgment in the respondent court pursuant to the alternative method provided by section 953a of the Code of Civil Procedure; that he complied with all necessary legal requirements to obtain a record on appeal, but that thereafter the phonographic reporter who had officiated at the trial died, and consequently it was impossible for petitioner within the time allowed by law or at all to have a record on appeal prepared in accordance with the provisions of said code section. Meanwhile his time for taking the appeal by way of bill of exceptions had lapsed; also his motion for new trial was denied by operation of law. Upon the grounds and for the reasons mentioned he presented a motion to the

It has been definitely settled in this state, however, that an order refusing to relieve a party from default in presenting a bill of exceptions in due season on account of mistake, inadvertence, surprise or excusable neglect, is an appealable order. It was expressly so held in Stonesifer v. Kilburn, 94 Cal. 33 [ 29 Pac. 332 ] ; and one of the latest decisions of the Supreme Court so holding is Wood v. Peterson Farms Co., 214 Cal. 94 [ 3 Pac. (2d) 922 , 923], the court there saying: “It has been held that an order denying relief from default in the preparation of a statement or bill of exceptions is appealable. (Murphy v. Stelling, 138 Cal. 641 , 643 [ 72 Pac. 176 ]; Brode v. Goslin, 158 Cal. 699 , 701 [ 112 Pac. 280 ].)”

Since it appears, therefore, that petitioner is afforded ample remedy by appeal to review the merits of the motion which he now seeks by this proceeding in mandamus to compel the trial court to grant, the application for the writ is denied.