Lien v. Morrill

SPENCE, Acting P. J.

This is an appeal from an order denying appellant’s motion for relief from his default in failing to serve his proposed bill of exceptions within the time prescribed by law.

The order denying appellant’s motion for new trial was entered on January 26, 1932, and notice thereof was given on the same day. Appellant therefore had ten days within which to serve his proposed bill of exceptions. (Code Civ. Proc., sec. 650.) No proposed bill was served within the time allowed. During said ten days counsel for appellant had a conversation with counsel for respondent in which he said: “He believed he would file an appeal.” Although the affidavits are conflicting, those offered by respondent showed that no oral stipulation was given extending appellant’s time. On this appeal the facts set forth in the affidavits offered by respondent must be taken as true.

(Boland

v.

All Persons,

160 Cal. 486 [117 Pac. 547];

Doak

v.

Bruson,

152 Cal. 17 [91 Pac. 1001].) Assuming that no oral stipulation was given, no excuse whatever was shown for appellant’s failure to obtain an extension of time within the ten-day period either by stipulation of counsel or by order of court. It is conceded that on February 9, 1932, counsel for respondent refused to sign a stipulation and the motion for relief was thereafter filed on February 18, 1932.

In our opinion the trial court’s ruling denying the motion may not be disturbed. In

Hole

v.

Takekawa,

165 Cal. 372, the court said at page 377 [132 Pac. 445, 447]: “It is well settled that the trial court is invested with a large discretion in the matter of such applications as this, and that its action will not be disturbed on appeal unless it is clearly made to appear that such discretion has been abused. This is true whether the application be granted or refused.” (See, also,

Blumer

v.

Mayhew, 17

Cal. App.