Bole v. McAdams

MARKS, J.

This is an appeal from an order of the Superior Court of Orange County made on the eleventh day of September, 1931, denying the motion of appellant to vacate and set aside an order made on the seventh day of August, 1931, sustaining objections of respondent to the settlement of a proposed bill of exceptions on appeal from a judgment, and denying appellant relief from his default in preparing and proposing such bill of exceptions for settlement, under the provisions of section 473 of the Code of Civil Procedure.

Judgment was rendered in favor of respondent in the trial court on March 14, 1931, and a notice of appeal was filed within the time allowed by law. On April 21, 1931, appellant obtained an order extending his time to prepare and serve his proposed bill of exceptions on appeal, to and including the fifth day of May, 1931. A copy of this order was served upon the attorneys for respondent and the original was filed with the county clerk. On May 2, 1931, a further order extending time to and including May 15, 1931, was obtained and filed, but was not served. On May

[8]

18, 1931, another order extending time to and including May 25, 1931, was signed, but was neither served nor was it filed on that day. Other orders attempting to extend the time to prepare and serve the proposed bill of exceptions to June 1, 1931, were signed. On the last-named date appellant served his proposed bill of exceptions. Counsel for respondent objected to the settlement of any bill of exceptions and reserved the right to object to such settlement and on June 8, 1931, served and filed written objections to the settlement of a bill of exceptions on appeal. Appellant then served upon respondent a written notice that the proposed bill and proposed amendments would be presented to the trial judge on June 20, 1931. This was continued to August 7, 1931, on which date respondent objected to the settlement of the bill of exceptions and the court sustained such objections and denied the application of appellant to be relieved from his default in his delay in preparing and presenting the bill and dismissing the proceedings to settle the bill of exceptions. It would seem that the principal reason for the delay in preparing the proposed bill was the failure of counsel for appellant to promptly secure from the court reporter the typewritten transcript. On August 24, 1931, appellant gave notice that on September 4, 1931, he would move for the requested order. His motion was denied and this appeal followed.