Murphy v. Stelling

HALL, J.

This is an appeal by defendant, F. E. Stelling, from an order made by the trial court denying appellant’s motion, made under section 473 of the Code of Civil Procedure, to be relieved from an order theretofore made, refusing to settle appellant’s proposed statement on motion for a new trial and dismissing said proceedings.

[96]

Counsel for respondent moves that the appeal be dismissed on the ground that the order appealed from is not appealable, but he has heretofore made the same motion, which was denied.

(Murphy

v.

Stelling,

138 Cal. 641, [72 Pac. 176].) The order denying his motion to dismiss has become the law of the case, and makes it necessary to determine the appeal on its merits.

The record before us shows that after judgment for plaintiff, defendant in due time gave notice of intention to move for a new trial on a statement to be thereafter settled; that the proposed statement was served on respondent in due time, and on the fifteenth day of September, 1900, (also in due time,) respondent served his proposed amendments thereto; that thereafter, during the month of October, 1900, the settlement of said statement was stricken from the calendar, and was subsequently restored on the eighth day of November, 1901, by consent; that thereafter plaintiff objected to the settlement of the said proposed statement on motion for a new trial on the grounds and for the reason that said proposed statement and said proposed amendments were not and had not been presented by the moving party to the judge who tried the cause, upon five days’ notice to the adverse party, or delivered to the clerk of the court for the judge within the time required by law, and that the court had no jurisdiction to settle said proposed statement; that thereupon the hearing of said matter and said objections was, on motion of said defendant, F. E. Stelling, continued to the eighteenth day of November, 1901.

Said matter and the. hearing thereof was again continued by the court to the ninth day of December, 1901, at the request of plaintiff.

On this last-named day plaintiff filed and presented in evidence the affidavits of Pfister, the clerk, and of Shilue, Schilling, Sex, Atgues, and Denker, his deputies, together with the indorsement on the said proposed statement and amendments as follows: “Received Sept. 28, 1900. Henry A. Pfister, Clerk, by J. M. Shilue, Deputy Clerk.”