Buis v. Lindauer Corp.

THOMPSON (R L.), J.

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.

[560]

May 16, 1927, the judgment of nonsuit was rendered and entered against the plaintiff. June 25th of the same year, notice of appeal was served and filed. July 16th a stipulation of respective counsel was made which recites “that the time for serving and filing the hill of exceptions . . . may be extended thirty days”. October 31, 1927, one of the attorneys for the defendants died. January 3, 1928, amendments to the proposed bill of exceptions were served on the plaintiff. July 6, 1928, a substitution of attorneys for the defendants was duly made. August 3, 1928, the plaintiff served and filed an application under the provisions of section 473 of the Code of Civil Procedure for relief from his default in failing to present his proposed bill of exceptions for settlement within the time allowed by law. It was his contention that Mr. Clyde Bishop, one of the attorneys for the defendants, who died October 31, 1927, verbally agreed, before the expiration of the time allowed by section 650 of the Code of Civil Procedure, to extend the time for presenting and settling the bill of exceptions. The plaintiff also alleged that Mr. Heclc, the other attorney for the defendants, had disappeared, and that his whereabouts was unknown. These assertions were supported on the motion for relief by affidavits. August 24, 1928, over the objection of the defendants, the court granted the relief prayed for. On September 12, 1928, over the objection of the defendants, the court settled and filed the bill of exceptions upon which this appeal was taken. The minute order regarding the settlement of this bill of exceptions contains the following recital: “The defendant duly objected to the signing by the court of' plaintiff’s bill of exceptions, which objection was overruled, and whereupon the defendant duly excepted to the signing of said bill of exceptions.” The defendants then presented and procured the settlement of a bill of exceptions of the record and proceedings affecting the plaintiff’s application and order for relief from default, pursuant to section 473,