Ralphs v. Oberfeld

STURTEVANT, J.

In this action the plaintiffs sought to recover judgment against the defendant on a written guaranty; the defendant answered and thereafter a trial was had before the court sitting without a jury. The trial court made findings in favor of the plaintiffs and awarded the plaintiffs a judgment, and the defendant has appealed, bringing up a bill of exceptions.

The respondents have interposed a preliminary objection which must be disposed of at this time. The respondents objected to the use of the bill of exceptions by the appellant and to the consideration of the bill by this court. The objection is based on the contention that after the bill had been settled it was not engrossed and presented for settlement within the time allowed by law. To support their objection the respondents presented for our consideration the certificate settling the bill. That certificate is as fol

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lows: “The foregoing engrossed bill of exceptions is hereby settled and allowed this 28th day of July, 1922, subject to the objection of counsel for plaintiffs that the same was not engrossed and presented for certification within the time allowed by law after settlement of proposed bill; said proposed bill having been settled on December 17th, 1921, ten days’ extension of time to engross and present having been given by stipulation of counsel on December 27th, 1921, ten days ’ further extension having been given by order of court on January 6th, 1922; the bill not having been engrossed and presented within said last extension; and the court having made and filed its order on January 17th, 1922, without notice to or consent of counsel for plaintiff, allowing defendant to January 27th, 1922, to engross and present said bill and said engrossed bill having been delivered to the attorney for plaintiffs for his stipulation as to the correctness of the engrossment on January 27th, 1922.’’ It will be noted that the certificate recites that the bill was settled December 17, 1921; it will be borne in mind that the statute (Code Civ. Proc., sec. 650) gave the appellant ten days in which to engross and present the bill for signature. That would carry the time to December 27th. Later counsel by stipulation extended the time ten days; that would carry until January 6, 1922. The certificate does not negative the fact that counsel for respondents did not give an additional extension, nor does it negative the fact that the court did not make' an additional order extending the time from January 6 to January 17, 1922. Continuing, the certificate affirmatively shows that on January 17th the court made an order extending the time to January 27, 1922, and on the date last mentioned the said engrossed bill was delivered to the attorney for the plaintiffs for his certificate as to the correctness of the engrossment. The trial judge certified the bill on July 28, 1922. It is presumed as a matter of law that his act in doing so was regularly performed and was within the lawful exercise of his jurisdiction. (Code Civ. Proc., see. 1963'.) In support of the certificate of the trial judge we must presume in the absence of any other showing that a further stipulation was obtained in due time, or an additional order was obtained in due time, regularly extending the period for engrossment from January 6 to January 17, 1922. No other objection being made thereto the bill of