Willett v. Schmeister Manufacturing Co.

CAMPBELL, J.,

pro tem.

This appeal is from an order of the trial court denying an application made under section 473 of the Code of Civil Procedure to be relieved from a default in failing to present a bill of exceptions within the time allowed by law.

Appellants’ motion was made on the following grounds: 1. “That through mistake and inadvertence of plaintiffs’ counsel they were not advised of the time when plaintiffs’ time for serving and presenting such proposed bill of exceptions commenced to run,” and 2. “That through mistake and excusable neglect plaintiffs were unable to obtain the reporter’s transcript of the testimony taken upon the trial within the time for serving and presenting their proposed bill of exceptions and were thereby prevented from preparing such proposed bill of exceptions within proper time.”

In support of their motion for relief because of the asserted mistake, inadvertence, and excusable neglect of plaintiffs’ counsel, the affidavit of such counsel was filed. The substance of this affidavit, after setting forth the professional engagements and press of business of affiant and letters in which respondent’s counsel made no objection to the time being extended, is contained in the concluding paragraphs, >as follows: “That the sole reason for plaintiffs’ failure to

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present their motion for new trial in the above entitled action within the time allowed by Section 660 of the Code of Civil Procedure of the State of California, was due to the inability of this affiant to obtain the transcript of the evidence in the trial of said action in proper season, together with the ignorance of affiant as to the change in said Section 660 of the Code of Civil Procedure of the State of California effective August 17, 1923, and that, in turn, affiant’s ignorance of the amendment of said Section 660 was due to the fact that affiant at all times since said amendment became effective has been overburdened with work so that it was impossible for him to properly acquaint himself with the amendments to the laws of California effective August 17, 1923. That plaintiffs were absolutely unable to serve and present a bill of exceptions earlier than May 10, 1924, owing to the fact that notwithstanding all affiant’s efforts to obtain a transcript taken upon the trial of the action, they were unable to obtain a sufficient or any transcript prior to the 8th day of May, 1924.”