Higgins v. Mogan

California Court of Appeal May 27, 1926 No. Docket No. 5663.Published

Before: Nourse

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Holding. The court held that a party is entitled to a writ of mandate compelling a trial judge to settle and sign a bill of exceptions regarding an intermediate, non-appealable order, provided the bill is presented within the time limits prescribed by section 649 of the Code of Civil Procedure.

Issues

Whether a trial judge may refuse to settle a bill of exceptions for a non-appealable order.
Whether section 649 of the Code of Civil Procedure requires a judge to settle a bill of exceptions for any decision, regardless of its appealability.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“By the express terms of the section a party may present for settlement a special bill of exceptions to any decision within ten days after notice of the decision and when settled the bill must be signed by the judge.”

“There is nothing in the section or in any other portion of the code which supports the respondent in his argument that the words “any decision” mean only a decision from which a separate appeal might be taken.”

NOURSE, J.

This is an original application to this court for a writ of mandate requiring the respondent Judge of the Superior Court to settle and allow the plaintiff’s proposed bill of exceptions. The petition alleges that the plaintiff was a duly appointed and acting trustee in bankruptcy of the Old Mission Kopper Kraft, Inc.; that on August 4, 1925, he commenced an action in the Superior Court of the City and County of San Francisco against two defendants who were regularly served with process and failed to appear therein, and that on November 19, 1925, the default of both of said defendants was duly entered; that thereafter said defendants moved the Superior Court to set aside said default and that on January 8, 1926, said motion was granted and said defendants were given leave to answer plaintiff’s complaint; that notice of said order was not given to the plaintiff until

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March 2, 1926, and that immediately thereafter plaintiff excepted to said order and prepared his proposed bill of exceptions thereto; that said proposed bill was served upon the said defendants within the time prescribed by law and duly presented to the judge of said court for settlement; that no amendments were proposed thereto by said defendants but that objections were made by them to the settlement of the bill upon the sole ground that the order setting aside said default was not an appealable order and was, therefore, not an order to which a special bill of exceptions might be filed; that after hearing upon said objections the judge of said court refused, and still refuses, to settle or allow said bill.

, Upon the return date of the order to show cause issued by this court no appearance was made on behalf of the respondent and we are left to assume that the only defense ¡to the issue of a writ of mandate as prayed herein is that tendered to the trial court in opposition to the settlement ¡of the proposed bill. The petitioner herein frankly concedes that the order setting aside the default is not an appealable ■order, but he insists that under the express provisions of ¡section 649 of the Code of Civil Procedure he is nevertheless ¡entitled to a settlement of his proposed bill. This section of the code provides in part:

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bill containing an exception to

Higgins v. Mogan

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NOURSE, J.

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