Lester v. Superior Court

BARNARD, Acting P. J.

This is a petition for a writ of

mandamus

to compel the respondents to settle a bill of exceptions.

The petitioners were defendants in a certain action pending in said Superior Court. They appealed from an order made and entered in said action striking out their answer and counterclaim and refusing permission to file an amended answer and counterclaim. The said defendants prepared a bill of exceptions and served the same on the attorney for the plaintiffs by mail on December 6, 1929, and filed the same with the clerk of said court on December 9, 1929. On December 11, 1929, the plaintiffs served upon the attorney for defendants certain proposed amendments to said bill of exceptions and filed the same with the clerk of said court on December 12, 1929. On December 23, 1929, the attorney for defendants served upon the attorney for plaintiffs a notice that the proposed bill of exceptions, with the amendments thereto, would be presented to the judge for settlement on January 6, 1930, at 10 o’clock A. M. When the matter came up for hearing the plaintiffs objected to the settlement of such proposed bill of exceptions on the ground that the same was not presented to the judge of said court for settlement until after the expiration of the time fixed by law for said presentation. This objection was sustained and the settlement of the bill of exceptions was refused. Thereupon this proceeding was instituted.

The respondents rely upon the cases of

Witter

v.

Andrews,

122 Cal. 1 [54 Pac. 276], and

Moultrie

v.

Tarpio,

147 Cal. 376 [81 Pac. 1112]. In the first of these cases there is involved the question of notice, where the bill in question was presented directly to the judge. In the other case the proposed bill of exceptions was neither presented to the judge nor to the clerk within the time allowed. Where, however, the bill of exceptions and the amendments are delivered to the clerk of the court for the judge, no notice on the part of the moving party is required.

(Mellor

v.

Crouch,

76 Cal. 594 [18 Pac. 685];