Rossi v. Scott, Magner & Miller

HAVEN, J.

Defendant appeals from a judgment entered against it upon verdict of a jury in an action for damages for personal injuries, basing its appeal upon the judgment-roll and a bill of exceptions. Respondents make the preliminary objection that the bill of exceptions cannot be considered upon the appeal for the reason that it was not prepared and settled within the time prescribed by law. The record, as it appears from the recitals in the bill of exceptions, is as follows: A motion for a new trial was made by the appellant, which was denied. Written notice of the denial of said motion was served upon appel

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lant’s attorneys on January 30, 1918. The proposed bill of exceptions was served upon respondents’ attorneys on April 4, 1918. At the time of such service respondents’ attorneys reserved their objection thereto upon the ground that said bill had not been prepared or served within the time allowed by law, or any extension thereof. Thereafter, and within the time allowed by law, respondents prepared and served upon appellant’s attorneys their proposed amendments to said bill of exceptions, and in submitting such amendments again objected and excepted to the settlement of the bill, and reserved all rights to object to the settlement thereof, upon the same ground as above stated. The objection thus reserved was urged by respondents upon the judge of the trial court when the bill was presented to him for settlement; but such objection was overruled and disallowed, and said bill was settled and allowed on August 6, 1918.

Under section 650 of the Code of Civil Procedure, the time for the preparation and service of the proposed bill of exceptions expired in ten days after the service of respondents’ notice of the denial of the motion for a new trial, or on February 9, 1918. Such time could not be extended by the court for more than thirty days without the consent of the adverse party. (Code Civ. Proc., sec.- 1054.) The actual service of the bill was on April 4, 1918, or nearly one month beyond the date to which the court could lawfully grant an extension of the time therefor. The record discloses no evidence of any extension of time by stipulation.

In

Higgins

v.