Manning v. Gavin

SHENK, J.

This is a motion to dismiss an appeal from a judgment for the defendants in an action to recover attorney fees.

The record shows that a notice of the order denying the plaintiff's motion for a new trial was served on the plaintiff’s attorneys, Samuel J. Jones and Philip MeEnerney, on August 2, 1937; that the clerk in the office of attorney MeEnerney inadvertently entered the date of service as August 30, 1937. Notice of appeal was filed on August 30, 1937. On September 7, 1937, Mr. MeEnerney applied to the trial court for an order extending time within which to file a proposed bill of exceptions. The court made its order granting an extension to October 5, 1,937. It is to be noted that the order was applied for and granted after the expiration of the ten-day period prescribed by section 650 of the Code of Civil Procedure for the filing of a proposed draft ‘ of the bill. Thereafter, on September 20, 1937, the defendant and respondent, Constance May Gavin, moved to set aside the order granting additional time as beyond the jurisdiction of the court; also to terminate the proceedings on appeal. On September 27, 1937, the trial court properly granted the motion to set aside the order extending time.

(Lewith

v.

Rehmke,

217 Cal. 563 [20 Pac. (2d) 687] ; sec. 1054, Code Civ. Proc.) On October 2, 1937, the trial court denied the motion to terminate the proceedings for preparation of the record on appeal. At the same time it granted the plaintiff’s motion theretofore made for relief from his default in failing to file a proposed bill of exceptions within the time prescribed by said section 650. The plaintiff filed

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his proposed bill of exceptions on October 5th following, and subsequently the bill of exceptions was settled and filed.

The present motion to dismiss the appeal from the judgment is made on the grounds that on September 7, 1937, the court had no jurisdiction to extend the plaintiff’s time within which to file a proposed bill of

exceptions;

and that the court abused its discretion in relieving the plaintiff from his default.