McArthur v. Paxton

SHAW, J.

Action against defendants as executors of the estate of Charlotte T. Paxton, deceased, to recover for medical services alleged to have been rendered by plaintiff to the deceased.

Defendants appeal from a judgment rendered in favor of plaintiff.

The judgment-roll is accompanied by a bill of exceptions exhibiting the alleged erroneous rulings of the court made in the course of the trial. This bill of exceptions was settled and allowed by the court over plaintiff’s objections, which were embodied in a special bill of exceptions settled at the time. .

[609]

In considering the appeal, respondent insists that appellants’ bill of exceptions should be disregarded for reasons disclosed by the record as follows: The judgment was- entered April 12, 1917, and notice thereof served upon defendants on April 14th. Defendants served a notice of intention to move for a new trial on April 24th, which motion, for want of prosecution, was denied by operation of law on July 14th (Code Civ. Proc., sec. 660), of which fact defendants must be deemed chargeable with notice.

(Bernschein

v. Whitaker, 175 Cal. 130, [165 Pac. 523].) Thirty days thereafter, to wit, on August 13th defendants served their proposed bill of exceptions and plaintiff, within due time, reserving therein the right to object to the settlement of any bill of exceptions on the ground that the same had not been proposed within the time allowed by law, prepared and served his proposed amendments to said bill on September 1st. Though served on September 1st, the amendments, together with the proposed bill of exceptions, were not delivered by defendants to the clerk to be presented to the judge who tried the case until December 15th, at which time the trial judge designated December 22d as the time for the settlement of the bill.

In the absence of any order extending defendants’ time, plaintiff’s objection to the settlement of the proposed bill of exceptions should have been sustained, for the reason that it was not served within the time allowed by law, nor was it, together with plaintiff’s proposed amendments, delivered to the clerk nor presented by defendants to the court for settlement, upon notice to plaintiff, within the time allowed by law. Indeed, there seems to have been no attempt to comply with the provisions of section 650 of the Code of Civil Procedure, which, in ease proceedings for a new trial are pending, require, unless the time for so doing be extended, that the draft of such bill be served upon the adverse party within ten days after notice of decision denying such motion; and upon service of any proposed amendments thereto, such bill and amendments must, within ten days thereafter, as provided in said section, be presented by the parties seeking the settlement- of the bill to the judge who tried or heard the case, upon five days’ notice to the adverse party, or be delivered to the clerk of the court for the judge. In the case of