Freese v. Freese

HARRISON, J.

Appeal from an order denying a new trial.

It is contended by the respondent that the order must be affirmed, for the reason.that the appellant did not present the statement to the defendant’s attorney within the time allowed therefor, and that, as the judge was not authorized to settle the same, there is no record upon which the order appealed from can be considered.

The notice of intention to move for a new trial was filed and served May 5,1898. May 19th, the appellant obtained from the judge an order giving him ten days from that date within which to prepare and serve the statement. A similar order was made May 31st, and another on June 11th, in each of which ten days from their respective dates was allowed for the preparation of the statement. The proposed statement was not served upon the defendant’s attorney until June 20th, and at the time of serving the same the attorney made the objection that it had not been served in time, and he also made the same objection when it was presented to the judge for settlement. Notwithstanding this objection, it was settled and allowed by the judge.

Under the provision of section. 1054 of the Code of Civil Procedure, the judge is authorized to extend the time for preparing a statement on motion for a new trial beyond the time allowed by the code, “ but such extension shall not exceed thirty days without the consent of the adverse party.” Any extension for a greater period than thirty days gives no right to the moving party.

(Bunnel

v.

Stockton,

83 Cal. 319;

Wheeler

v.

Karnes,

125 Cal. 51;

Cameron

v.

Arcata etc. R. R. Co.,

129 Cal. 279.) It is also essential that any order extending the time shall be made before the party seeking such extension is in default. If he permits the time within which he may act to elapse without acting, any subsequent order giving him time to act will not avail to revive his right to do the act.

(Clark