Steen v. Santa Clara Valley Mill & Lumber Co.

[449]

HARRISON, P. J.

Appeal from an order denying the defendant’s motion to he relieved from a default.

The action between the parties herein was tried by the court without a jury, and its decision in favor of the plaintiff filed and judgment entered thereon December 26, 1902; and on the same day the plaintiff served upon the defendant a memorandum of his costs and disbursements, together with a written notice of said decision, and filed the same, together with the defendant’s acknowledgment of service indorsed thereon, in the office of the clerk. The said notice is in the following words: “Von are hereby notified that the within memorandum of said plaintiff’s costs and necessary disbursements in said action (with a copy whereof you are hereby served) has been filed with the clerk of said court and that said court has rendered its decision herein containing its findings of fact and conclusions of law.” (The first portion of this notice was printed and the latter portion was interlined thereunder in writing.) To this notice the defendant’s attorney had signed his acknowledgment of a receipt thereof. January 10, 1903, the defendant served upon the plaintiff and filed with the clerk a notice of its intention to move for a new trial. ' The plaintiff admitted service thereof, but reserved in said admission “all objections thereto, particularly that it was not served within ten days after the service of the notice of decision.” Thereafter, within the time stipulated by the parties, the defendant served upon the plaintiff its proposed statement on motion for a new trial, to which the plaintiff served upon the defendant proposed amendments—plaintiff in each of said stipulations reserving the objection that the notice of intention to move for a new trial was not served in time. The matter of the settlement of the statement came on for hearing November 9, 1903, and the plaintiff made objection to its settlement upon the same ground; and the respective parties having offered evidence thereon the court held that the service of the notice of intention to move for a new trial was not within the time allowed by law. Thereafter the defendant, having given the plaintiff notice thereof, made application to the court for an order relieving it from its default in serving said notice of intention, and in support of said motion read the affidavit of its attorney and the aforesaid memorandum of costs, to