Sheehy v. Minaker

HALL, J.

This is an appeal from an order denying appellant’s motion, made under section 473, Code of Civil Procedure, to be relieved from plaintiff’s objection that appellant’s proposed bill of exceptions was not served in due time. The particular ground for relief relied on is that the bill was not served in due time because of excusable neglect on the part of appellant’s attorneys.

The record before us shows that after the expiration of the time allowed by law, and the full extension thereof allowed by the judge of the court, the time for serving the bill of exceptions was . extended by stipulation to the first day of September, 1909. This stipulation was filed August 10, 1909.

The reporter’s transcript of the proceedings upon the trial was placed in. the hands of Mr. Zabala, one of the 'attorneys for the appellant, on August 4th, but the preparation of the bill was not commenced until September 4, 1909. It was completed on September 6th, and was on. September 20th placed in. the hands of Mr. Hudson, one of the attorneys for respondent.

Its settlement was promptly objected to, for the reason that it was not served in due time. A motion was made by appellant to be relieved from the objection. Affidavits were presented and read upon the motion, and the motion denied.

Appellant very candidly and correctly concedes at the outset that this court cannot interfere with the action of the trial court unless it clearly appear that the denial of the motion was an abuse of discretion.

(Ingrim

v.

Epperson,

137 Cal. 370, [70 Pac. 165].)

After a careful examination of the record before us we are unable to say that it clearly appears that the trial court in its action denying the motion abused its discretion.

Appellant’s attorneys in the action were Jordan, Rowe & Brann, of San Francisco, and P. E. Zabala, of Salinas.

[439]

The attorneys for respondent were Sheehy and Hudson, the first of Watsonville, and the second of Monterey. Sheehy is also the plaintiff.