Prefumo v. Russell

SHAW, J.

The defendants appeal from a judgment in favor of the plaintiff and from an order denying the defendants’ motion for a new trial.

The respondent makes a preliminary objection to the consideration of any of the points arising upon the motion for a new trial upon the ground that the bill of exceptions was not properly settled and is not a part of the record. The judgment was rendered on January 24, 1903. The defendants served on the plaintiff’s attorney their proposed bill of exceptions, and thereafter, on March 18, 1903, the plaintiff’s attorney served on the attorney for the defendants his proposed amendments thereto. The bill and amendments thereto, thus proposed, were not within ten days thereafter pre-" sented to the judge for settlement nor filed with the clerk for the judge. They were filed with the clerk for the judge on March 31, 1903, which was thirteen days after the service. Section .650 of the Code of Civil Procedure requires the party proposing the bill to either present them to the judge for settlement or deliver them to the clerk for the judge within ten days after the service on him of the proposed amendments. The objection made to the settlement of the bill was that the bill and amendments were delivered to the clerk for the judge too late, and that the proceeding for the settlement of the bill consequently lapsed. The facts

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were that the attorney for the plaintiff, who served the proposed amendments, at that time resided and had his office in San Luis Obispo; that the attorney for the defendants, on whom the service was made, at that time resided and had his office in San Francisco, and the service of the proposed amendments was made by mail, under the provisions of sections 1012 and 1013 of the Code of Civil Procedure, the distance between the two places, according to the stipulation of the parties, being two hundred and fifty miles. Section 1013 provides that in such cases the service is complete at the time the paper is deposited in the post-office at the place of residence of the person making the service, “but if within a given number of days after such service a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done is extended one day for every twenty-five miles distance between the place of deposit and the place of address, such extension, however, not to exceed ninety days in all.” The effect of this provision of section 1013 is to extend this time in the present case ten days, so that the defendant had twenty days in all after such deposit in the post-office within which to make the delivery to the clerk, and consequently the delivery on March 31st was within the time allowed, and was sufficient.