Howell v. Pedersen

LANGDON, P. J.

This is an appeal from an order of the trial court refusing to settle and allow plaintiffs’ bill of exceptions on appeal from the main judgment in the case, and denying plaintiffs’ motion for relief from their default in failing to prepare and serve their proposed bill of exceptions within the time allowed by law therefor. •

[1]

The discretionary power of a trial court in proceedings of this character is not to be interfered with, except upon a clear abuse of discretion. The trial court has decided that the plaintiffs did not make a showing of excusable neglect, and it would

[47]

seem that such a conclusion was warranted. The only excuse offered by plaintiffs for their failure to prepare and serve this bill of exceptions in time was that the transcript could not be secured from the reporter in time. But upon plaintiffs’ own showing, the facts appear to be that on January 31, 1918, judgment was entered in the case and notice of entry of judgment was served upon plaintiffs on February 18, 1918. Appellants did not apply to the court for an extension of time within the ten days allowed by law for the preparation and service of the bill.

[2]

It has been repeatedly held that an extension of time, permitted under section 1054 of the Code of Civil Procedure, must be obtained within the period during which the original right is still alive.

(Clarke

v.

Crane,

57 Cal. 629;

Oppenheimer

v.

Radke & Co.,

165 Cal. 220, [131 Pac. 365];

Union Collection Co.

v.

Oliver,

162 Cal. 755, [124 Pac. 435];