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Kramm v. Stockton Electric Railroad

22 Cal. App. 761 Court Third Appellate District. Decision date 1913-09-23 Docket Civ. No. 1126 English

Delivered by HART, J.

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p. 761
[Civ. No. 1126.
Third Appellate District.
September 23, 1913.]
CATHERINE KRAMM, as Administratrix of the Estate of Philip Kramm, Deceased, Appellant, v. STOCKTON ELECTRIC RAILROAD COMPANY (a Corporation), Respondent.

Headnote

Appeal—Belief from Default in Preparing and Serving Bill of Exceptions.—An order relieving the moving party for a new trial from his failure to prepare and serve a bill of exceptions within the time prescribed by law, on the ground of inadvertence and excusable neglect, is not appealable, and hence an appeal therefrom will be dismissed; but the point may be reviewed where the action of the court relieving the defendant of his default, together with all the proceedings had therein, is incorporated in the record on motion for a new trial.
APPEAL from an order of the Superior Court of San Joaquin County, relieving the defendant from default in failing to serve his proposed bill of exceptions in time. J. A. Plummer, Judge.
The facts are stated in the opinion of the court.
Jacobs & Flack, for Appellant.
Arthur L. Levinsky, for Respondent.

This is an appeal from an order relieving the defendant from its alleged default in failing to prepare and serve, within the time prescribed by law, its proposed bill of exceptions. The proceeding was had under section 473 of the Code of Civil Procedure, and the ground upon which the 'order was asked for and allowed was that the alleged default of the defendant was due to inadvertence and excusable neglect.

As is shown in Kramm etc. v. Stockton Electric R. R. Co., Civil No. 1115, ante, p. 737, [ 136 Pac. 523 ], this day decided, the order appealed from is not one from which an appeal may be taken, and this appeal will, therefore, have to be dismissed. (Code Civ. Proc., sec. 963, subd. 2; Kaltschmidt v. Weber, 136 Cal. 675 , [ 69 Pac. 497 ].)

p. 762
The point is, however, reviewed and decided in Civil No. 1115, the action of the court relieving the defendant of its alleged default, together with all the proceedings had therein, being incorporated in the record on the motion for a new trial. (Kaltschmidt v. Weber, 136 Cal. 675 , [ 69 Pac 497 ].)

The appeal herein is dismissed.

Chipman, P. J., and Burnett, J., concurred.

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