Blumer v. Mayhew
Before: Shaw
Synopsis
Appeal from Order Refusing Relief from Default—Failure to Prepare Bill of Exceptions—Discretion—Review upon Appeal.— Upon appeal from an order refusing to grant relief under section 473 of the Code of Civil Procedure, on the ground of mistake, inadvertence and excusable neglect in failing to prepare a bill of exceptions in time to be used upon appeal from an order denying a new trial, the order appealed from is a matter purely within the discretion of the trial court, and this court cannot interfere to review .the same, where it does not clearly appear that there has been a plain abuse of discretion.
Id.—Suggestions of Advice to Trial Judges— Relief to Moving Party—Decision upon Merits—Rule as to Review of Discretion not Relaxed.—Though appellate courts have suggested, by way of advice to trial judges, that all doubts as to the propriety of their rulings upon applications for relief from default under section 473 of the Code of Civil Procedure should be resolved in favor of the moving party, for the reason that it tends to bring about a decision upon the merits, yet, notwithstanding this fact, the rule which prohibits interference by appellate courts with the decision of the trial court thereupon, save and except in case of an abuse of discretion, has never been relaxed.
Id.—Attorney’s Ignorance of Statute as to Appeal from Order Denying New Trial Inexcusable.—The statutory provisions with reference to the procedure to be taken upon an appeal from an order denying a motion for a new trial are of such long standing, so fully set forth in the Code of Civil Procedure, and have been so frequently passed upon and construed by the appellate courts of this state, that ignorance of the time within which a statement or bill of exceptions must be prepared and served cannot be deemed the result of mistake or surprise or inadvertence, and the neglect to prepare and serve it within the time prescribed by the code is not excusable.
Id.—Nature and Effect of Showing Made.—It is held that, upon the showing made in support of the application for relief under section 473 of the Code of Civil Procedure in this case, it not only cannot be said that the court failed to exercise a proper discretion, but that it may also rather be said that, had the ruling been otherwise, noninterference by this court would have strained the rule prohibiting interference with an order when it tends to give a hearing upon the merits of the case.
SHAW, J.
This is an appeal from an order of court denying defendant’s motion for relief under the provisions of section 473, Code of Civil Procedure.
On November 29, 1909, defendant’s motion for a new trial and to have vacated and set aside a judgment theretofore rendered herein was denied. More than sixty days thereafter, and in the absence of any stipulation or order extending the time, he presented to the court what he termed a ‘ ‘ Record on Appeal,” consisting of copies of certain papers which he deemed necessary to constitute such record, together with a copy of the reporter’s transcript of the testimony used at the hearing of the motion for a new trial, and, upon notice to plaintiff, applied to the court to have the same authenticated. Upon objection being made by plaintiff, the court refused to authenticate the papers upon the grounds that the same were not presented within the time required by law. Thereupon defendant applied to the court to be relieved from his default upon the grounds that the same was due to mistake, inadvertence and excusable neglect. .His application was denied by the court, and from this order he has appealed.
In his affidavit in support of the motion, defendant’s attorney states that he had been instructed by his client to take an appeal from the order denying his motion for a new trial; that affiant had never before undertaken to prosecute such an appeal to the supreme court and was unaware that the matters in support of such motion should be authenticated in a bill of exceptions, as provided in section 650 of the Codé of Civil Procedure; that about ten days after the date of the order of court denying defendant’s motion for a new trial, affiant was informed that under the decisions of the supreme court of this state the papers used upon such appeal should be embodied
[225]
in a bill of exceptions and the same authenticated by the trial judge, and thereupon he made an investigation of such decisions and came to the conclusion that the supreme court based their opinions upon the ground that
all
of the records used in the court below had not been transferred to them, for which reason alone he concluded the court so decided said cases; that it would have been impossible to prepare the record within the time required by law, and that affiant did obtain an extension of thirty days’ time within which to file the record in the supreme court of California, he still being of the opinion at the time that no bill of exceptions was necessary.
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