Slye v. Hunt

California Court of Appeal Dec 7, 1915 No. Civ. No. 1773.Published

Before: THE COURT. —

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Holding. The court held that the trial judge must settle the bill of exceptions because the judge's prior participation in the settlement process waived previous delays, and the defendants were not guilty of laches in the subsequent proceedings.

Issues

Whether the trial court's participation in the settlement of a bill of exceptions constitutes a waiver of prior delays by the parties.
Whether the defendants were guilty of laches in prosecuting the settlement of the bill of exceptions after the court referred the matter to counsel.
Whether changes in procedural law regarding new trial motions apply to pending cases.

Disposition. writ issued

Quotations verified verbatim against the opinion

“the fact that on said last named' day the judge of the court took up and proceeded with the settlement of the bill, counsel for both parties being present and participating in such settlement without objection, constitutes a waiver and cure”

“We think these admitted facts make it clear that there was no such laches on the part of the defendants in these later proceedings subsequent to March 24, 1915, as would suffice to justify the judge of the court in refusing to settle the bill”

Synopsis

APPLICATION originally made to the District Court of Appeal for the First Appellate District to compel the settlement of a bill of exceptions.

The facts are stated in the opinion of the court.

THE COURT.

This is an application for a writ of mandate, directed to the judge of the superior court of the city and county of San Francisco, requiring him to proceed to settle the bill of exceptions and statement in the case of

Julia A. Roberts et al.

Joseph Slye et al.,

No. 52,138, now pending in said court.

The facts of the case as they appear from the petition are briefly these: The said action of

Roberts et al.

Slye et al.

was commenced in said court at some time during the year 1913, and came on for trial in the month of December of that year, at which trial a verdict was rendered in plaintiffs’ favor on December 18, 1913, for the sum of four thousand five hundred dollars, upon which verdict judgment was entered in due course; that notice of intention to move for a new trial was duly given, and that within sixty days after said judgment an appeal therefrom was perfected to the supreme court. Thereafter, within the time allowed by law and the stipulations of counsel, defendants prepared and served a proposed bill of exceptions, embracing a statement of the ease, consisting of 172 typewritten pages, to which the plaintiffs in due course prepared and served their proposed amendments, numbering 143, and containing some 87 pages of typewriting. Thereupon and in due time the defendants notified the plaintiffs of their nonacceptance of said amendments, and on September 21, 1914, delivered the same, together with their proposed bill of exceptions, to the clerk of the court for the judge thereof, accompanied by a number of affidavits upon which the motion for a new trial was to be made. Thereafter, from various causes, the settlement of the bill of exceptions, and consequently the motion for a new trial, were delayed for several months, but finally the former came up for hearing on March 24, 1915, and was then taken up by the court, coun

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sel for both parties being present and no objection to the settlement of the bill of exceptions being made. After the matter of the settlement had proceeded for some time the judge of the court requested counsel for both sides to confer and attempt to agree on certain of the amendments thereto, and report to him as to what could not be agreed upon, and the further hearing of the matter was continued until such report.

Slye v. Hunt

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Synopsis

THE COURT.

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