Woodard v. Superior Court

HOUSER, J.

Mandate. In this proceeding petitioner seeks an order directing the respondent Superior Court and a judge thereof to settle a bill of exceptions.

It is conceded that the proposed bill of exceptions was not served within the time allowed by law, and that the determining question is whether there was a waiver of that fact.

Stripped of all unnecessary detail, it appears that the plaintiff in the action presented to the defendant therein, but not within the time prescribed by law, a proposed bill of exceptions; that thereupon the defendant presented to the plaintiff and filed with the clerk of the court his proposed amendments to the proposed bill of exceptions, and at the same time served the plaintiff with a notice, copy of which being as follows:

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“You will please take notice that the following amendments are proposed on the part of defendant K. Eustace to the bill of exceptions or transcript on appeal proposed by-plaintiff, and that" said amendments are proposed and submitted by said defendant without waiving any exceptions or objections which said defendant has or may have to the said proposed bill of exceptions or transcript on appeal, or the service thereof, or the filing thereof, or the settlement of same, and without waiving objection to said bill of exceptions or transcript on appeal upon the ground that said bill of exceptions or transcript on appeal was not served within the time allowed by law, stipulation of counsel, or order of court.”

At all times after said notice was served the defendant reserved all objections and exceptions to said bill of exceptions and continually claimed and insisted that the plaintiff’s proposed bill of exceptions was not served on the defendant within the time fixed by the statute. It is true that on December 3, 1925, on being served with notice that the proposed bill and amendments would be taken up for settlement on December 9th, the attorney for defendant signed an acknowledgment of receipt of copy of the notice, without further specifying that he continued to insist upon the objections which he had reserved. But on the following day, December 4th, he served upon plaintiff’s attorney notice that on December 9th he would move to dismiss the proceedings for settlement, upon stated grounds which were the same as those which had been reserved as above stated. It is therefore clear that no waiver of the objections had been expressed, or implied, or intended.