Willett v. Schmeister Manufacturing Co.

This appeal is from an order of the trial court denying an application made under section 473 of the Code of Civil Procedure to be relieved from a default in failing to present a bill of exceptions within the time allowed by law.

Appellants’ motion was made on the following grounds: 1. “That through mistake and inadvertence of plaintiffs’ counsel they were not advised of the time when plaintiffs’ time for serving and presenting such proposed bill of exceptions commenced to run,” and 2. “That through mistake and excusable neglect plaintiffs were unable to obtain the reporter’s transcript of the testimony taken upon the trial within the time for serving and presenting their proposed bill of exceptions and were thereby prevented from preparing such proposed bill of exceptions within proper time.”

In support of their motion for relief because of the asserted mistake, inadvertence, and excusable neglect of plaintiffs’ counsel, the affidavit of such counsel was filed. The substance of this affidavit, after setting forth the professional engagements and press of business of affiant and letters in which respondent’s counsel made no objection to the time being extended, is contained in the concluding paragraphs, >as follows: “That the sole reason for plaintiffs’ failure to

Appellants’ time for presenting their proposed bill of exceptions expired under the provisions of section 660 of the Code of Civil Procedure, as amended (Stats. 1923, p. 233), on March 29, 1924. On April 14, 1924, the trial court made its order extending plaintiffs’ time to serve and present to the court for settlement their proposed bill of exceptions, and on July 7, 1924, the court made its order denying plaintiff’s motion for relief from default entered against them for not presenting their proposed bill of exceptions within the time allowed by law. It will be seen from the foregoing that the bill of exceptions was not served nor presented within the time allowed by law, stipulation of the parties, nor by any order of court extending such time, made before the time allowed by law had expired.

[1] The first point urged by appellants, that through mistake and inadvertence they were not advised of the time when their time for serving and presenting the proposed bill of exceptions commenced to run—that is, that because of unusual press of business plaintiffs’ counsel did not discover that section 660 of the Code of Civil Procedure had been amended and the time for serving and presenting the bill of exceptions shortened from three months to two months, is without merit. “Ignorance of the time within which a statement

[4] As to the second ground urged by appellants that they were unable to obtain the reporter’s transcript, it is sufficient to say that such transcript is not necessary on motion for a new trial; that if the phonographic reporter fails to transcribe the proceedings in time, he must, upon request of the court, or either party, attend the hearing and read his notes, or such part thereof as is requested. (Code Civ. Proc., see. 660.) The motion for a new trial not being made within the two months prescribed by the statute was by its terms automatically denied on March 19th and the ten days within which to present the proposed bill of exceptions expired on March 29th, and it was not until May 10th that the proposed bill of exceptions was presented to the clerk for the trial judge and served upon opposing counsel. If the transcript of the testimony could not be had within the ten days within which the bill of exceptions is required to be served and presented, an order extending the time should have been obtained before the ten days expired. [5] The party appealing has the right to have his bill of exceptions settled within the time limit provided, and within such further time as the court might grant by an order made before expiration of such time.

[6] The granting or denying motions of this character is in the discretion of the trial court and such discretion will not be interfered ivith and its order reversed unless it is clear that the trial court has abused its discretion. (Ingrim v. Epperson, 137 Cal. 370 [ 70 Pac. 165 ]; Alferitz v. Cahen, 145 Cal. 397 [ 78 Pac. 878 ]; Horne v. Standard Auto Sales Co., 62 Cal. App. 478 [ 216 Pac. 970 ].) The record here does not clearly show such an abuse of discretion.

Appellants in their brief call our attention to the cases of Nicoll v. Weldon, 130 Cal. 666 [ 63 Pac. 63 ], and Mitchell v. California etc. S. S. Co., 156 Cal. 576 [ 105 Pac. 590 ], as authority for their contention that in the instant case the trial court abused its discretion in denying their application for relief from their default. In Nicoll v. Weldon the court held that the terms imposed by the trial court as a condition to granting a motion of the defendant to set aside a default must, in the absence of a contrary showing, be held to be ample compensation to the plaintiff for any injury he may have suffered by the delay occasioned by the motion, and that the discretion of the trial court is best exercised when it tends to bring about a judgment upon the merits. In Mitchell v. California etc. 8. S. Co., the affidavit of the attorney was to the effect that he was busily engaged and sick a part of the time and that he relied upon his clerk, who informed him from time to time that he had obtained more time to present his bill of exceptions and that he believed his suboi'dinate was getting extensions of time from plaintiff attorneys by stipulation, instead of which he had obtained orders from the court and the last order extended the time beyond the thirty days in which the court was permitted to extend the time, without the stipulation of the parties, as provided by section 1054 of the Code of Civil Procedure, and the court held that the mistake of the attorney was one of fact. In the instant case it will be noted that the time had expired before the matter was in any manner brought to the attention of the court. We cannot say that the trial court abused its discretion in denying

The order appealed from is affirmed.

Tyler, P. J., and Knight, J., concurred.