Perrine v. Comstock

BISHOP, J.,

pro tem.

Appellant presents two appeals, both from orders denying him relief from his default in not preparing and serving a proposed bill of exceptions within time. Appellant having been unsuccessful in a trial had before the court without a jury, judgment in favor of the several defendants and against him was entered February 19, 1929. Notice of this entry was served upon appellant February 23d, and on February 26th he filed his notice of intention to move for a new trial. This last-mentioned notice was served upon the attorneys for defendants Comstock and Nyberg only, not upon any of the other twelve defendants in the case. Thereafter, March 20th, the motion for a new trial was made and denied, and notice of the order was served upon appellant March 23d. (He had filed his notice of appeal from the judgment, March 21st.) Under the code provisions, as then effective, appellant had ten days, after receiving notice of the entry of judgment, within which to prepare and serve a proposed bill of exceptions, except in so far as the proceedings on a motion for a new trial extended the time, ten days, from receipt of notice of the decision on the motion. (Sec. 650, Code Civ. Proc.) At most, therefore, appellant had until April 2d to prepare and serve a proposed bill. As to the defendants not served with his notice of intention, proceedings for a new trial were not pending (20 Cal. Jur. 103), and it may be that his time, so far as a bill of exceptions would affect them, expired March 5th. This we need not decide; we mention it only because it was the theory adopted by appellant in his various moves in the court below, and must be kept in mind, if we are to understand his maneuvers. For example, he served notice of motion, as early as March 27th, to be permitted, under section 473 of the Code of Civil Procedure, to order the preparation of the record on appeal by the alternative method. (Sec. 953a et seq., Code Civ. Proc.) This motion he abandoned at the time of hearing, expressing a desire to move instead for leave to prepare and present a bill of exceptions. Whatever motion was made

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was denied without prejudice. Another motion, on notice, was made April 10th, asking that he be relieved of his default in not preparing and filing a bill of exceptions. This also was denied without prejudice. Meanwhile, March 27th, he had secured an order giving him until April 20th to prepare, serve and file a proposed bill. His next recorded move was not until April 23d, when another