McWilliams v. Hudson

MONCUR, J.,

pro tem.

This is an appeal from an order of the trial court relieving respondents from their failure to file a bill of exceptions within ten days after notice of entry of an order denying a motion for a new trial.

In an action commenced by respondents herein, plaintiffs below, against appellants, judgment went for the appellants. Plaintiffs, within the time allowed by law, moved for a new trial, and the motion was denied on September 8, 1925, and notice of decision was served on respondents’ counsel on September 17, 1925. No order or stipulation extending time within which to file a bill of exceptions was made. On October 31, 1925, plaintiffs, without notice to the defendants, or their counsel, made an

ex parte

application to the court for relief from their failure to file a proposed bill of exceptions within the period provided by law, and asked for leave of court to serve and file their proposed bill of exceptions to be used on appeal from the judgment rendered in the action, by November 6, 1925. The application was made upon the affidavit of one of counsel for plaintiffs, and on October 31, 1925, the trial judge made and entered an order relieving plaintiffs from their said failure to so file their bill of exceptions, and permitted them to serve and file the same on or before November 15, 1925.

[187]

It is the contention of appellants that the trial court was without authority to relieve the respondents from such failure to so file their bill of exceptions, for the reason that the time limit embraced in section 650 of the Code of Civil Procedure, within which the draft of a proposed bill of exceptions may be served upon the adverse party, is mandatory. This contention, however, cannot be sustained. (See

Banta

v.

Siller,

121 Cal. 414 [53 Pac. 935], and cases therein cited.) The relief granted, of course, is based upon section 473 of the Code of Civil Procedure, and it is contended by appellants that the requirements of said section, particularly in respect to notice to counsel on the other side and an affidavit of merits, have not been complied with. However, in the view we take of the appeal it is not necessary to decide this matter. It is the contention of respondents that the order appealed from is not an appealable order, and we are satisfied that this contention must be sustained. The ease of