Horne v. Standard Auto Sales Co.

LANGDON, P. J.

This is an appeal from an order of the trial court denying defendant’s motion to be relieved from the effect of objections taken by plaintiff to proposed bill of exceptions because of defendant’s failure to file said bill in due time.

The motion of defendant was made under section 473 of the Code of Civil Procedure. It appears by the affidavits upon which the motion was considered by the trial court that after the plaintiff had obtained a judgment in the action for damages for personal injuries, the respective attorneys for plaintiff and defendant negotiated with a view to compromising the claim and avoiding any further litigation. By stipulation between said attorneys the defendant’s time for serving and filing proposed bill of exceptions was extended to November 25, 1921. On that date attorney for defendant requested of the attorney for plaintiff a further extension of ten days, which was granted. At the expiration of said time (December 5, 1921) attorney for defendant telephoned to the attorney for the plaintiff and requested an additional ten days, stating that the representative of the defendant company was in Los Angeles and would come to San Francisco within a few days to confer with reference to payment of the judgment. The attorney for the plaintiff refused to grant an extension of ten days, but stipulated that the defendant might have five days’ additional time, or until December 10, 1921, within which to serve and file said proposed bill of exceptions. On December 10, 1921, attorney for defendant again telephoned the attorney for the plaintiff and asked for ten days’ additional time, stating that within such time he hoped to convince the representative of the defendant company of the wisdom of paying the judgment. Attorney for plaintiff refused to grant an extension of more than five days. Thereupon attorney for defendant pleaded that he be allowed the remainder of the week and attorney for plaintiff finally extended defendant’s time for six days or until December 16, 1921.

No attempt was made to secure further time and the bill of exceptions was not served and filed until December 20, 1921, at which time plaintiff objected to its settlement and his objection was sustained. Then followed the motion of the

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defendant to be relieved of the effect of its default, and from the order denying such motion the defendant has appealed. Before the filing of said bill of exceptions, to wit, on December 8, 1921, the law firm of Sloss, Ackerman and Bradley was substituted in the place and stead of the former attorneys for the defendant. Said substitution was dated December 8, 1921, and copy of same was served upon the attorney for the plaintiff and filed on December 12, 1921, and said substituted attorneys prepared and filed the proposed bill of exceptions, settlement of which was denied.