Kerrigan v. Anderson

RICHARDS, J.

This is an appeal from an order of the superior court of the county of San Mateo denying a motion of the plaintiffs herein to be relieved from their default in failing within the time allowed by law to serve and file their proposed bill of exceptions in the ease.

The action was one brought to set aside a deed given to the defendant by her mother conveying certain real estate. Judgment was therein entered in favor of the defendant on March 9, 1920; notice of the entry of such judgment was served on the plaintiffs’ attorneysi on March 25, 1920, and was filed on April 1, 1920. A motion for a new trial was made by the plaintiffs and denied on May 13, 1920; on June 10, 1920, notice of appeal from the judgment was duly served and filed; on June 11, 1920, a written stipulation signed by the attorneys for both parties was filed extending the plaintiffs’ time to prepare and serve a bill of exceptions to July 1, 1920. Thereafter certain corre

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spondence and also certain conferences occurred between respective counsel having reference in part to the preparation of the bill of exceptions and in part to' the settlement of the ease. On September 20, 1920, counsel for the defendant wrote a letter to one of the plaintiffs’ counsel stating that he saw no chance of the settlement of the case and suggesting that steps be taken to bring the matter to a conclusion. Up to this time no proposed bill of exceptions had been served, although at some earlier date plaintiffs’ counsel had sent to the defendant’s counsel a rough draft of a statement of the testimony, which was to be incorporated in a bill of exceptions to be thereafter prepared On September 24, 1920, plaintiffs’ counsel, replying to the foregoing letter, referred to this incomplete draft of the testimony, required its return, and inclosed a proposed stipulation extending the time for the preparation and filing of the bill of exceptions to October 15, 1920. To this letter defendant's counsel made no written response nor did he sign said stipulation. During the following two, months or thereabouts it is claimed by plaintiffs’ counsel and denied by counsel for the defendant that in certain conferences between respective counsel oral stipulations and understandings were had, the effect of which, according to appellants’ claim, was to extend the time for the service and filing of the bill of exceptions. In the early part of December, 1920, one of plaintiffs’ counsel went to the office of defendant’s counsel and procured the incomplete draft of the testimony above referred to. At or about the same date a letter was written by counsel for the plaintiffs to defendant’s counsel referring iñ detail to the foregoing matters, and again requesting- the latter’s signature to a written stipulation extending plaintiffs’ time to prepare and serve their bill of exceptions. To this letter defendant’s counsel replied on or about December 15, 1920, refusing to sign said or any stipulation with relation to said bill of exceptions. Thereafter and on or about January 4, 1921, plaintiffs’ proposed bill of exceptions was served on defendant’s counsel and delivered to the clerk of the court, with instructions to hand the same to the judge.