Houghton v. Superior Court

TEMPLE, J.

This is an application for a writ of mandate, directed to the judge of the above court, requiring him to settle and certify a hill of exceptions to he used on an appeal from an order made after judgment. The draft of the proposed hill was served in proper time, August 19, 1899. Some of the parties upon whom the proposed hill was served resided in San Francisco, where appellant’s counsel has his office; others resided at Riverside and in Los Angeles, and these were served by mail.

[354]

The distance from San Francisco to Riverside is five hundred and forty-seven miles. The proposed hill consisted of sixty-seven pages typewritten matter, and included many exhibits, which were parts of the pleading or were on file in the case. These exhibits were not copied into the proposed bill, but were referred to and the statement made in brackets as to each “[here insert].” Upon this service the -amendments became due September 20th. After the lapse of this time, during which no proposed amendments were served, petitioner proceeded to engross the proposed bill, copying into it all the exhibits referred to, making, when engrossed, five hundred and five typewritten pages. This was sent by express from San Francisco to Riverside on the thirty-first day -of October, 1899, and was presented to the judge for his certificate -on the second day of November, 1899. The order appealed from was an order substituting C. L. McFarland -as attorney for W. E. Atwater, in place of petitioner, in the ease of

Matthew Gage v.

W.

E. Atwater et al.,

and after judgment entered in that case. November 6th notice was served on the petitioner that his former clients would move the court for -an order refusing to settle -and certify said bill of exceptions and striking the same from the files, on the ground that the draft of the bill was not presented for settlement within the time required by law. The motion was heard and taken .under advisement, and on December 16, 1899, the judge made an order as follows: “The objection made by said Atwater to the court settling said bill of exceptions is sustained, and the court, declines and refuses to settle said bill of exceptions for the reason that said bill of exceptions was not presented to tho judge of the court or the clerk thereof within the time provided by law, and also for the reason that the delay in presenting said bill within the time provided by law was unnecessary -and without excuse.”