Hole v. Takekawa

ANGELLOTTI, J.

This is an appeal by plaintiff from an order denying his motion for relief under section 473 of the Code of Civil Procedure from the effect of his failure to present within the time allowed by law his proposed bill of exceptions for use on a motion for new trial in the above entitled action. The judge refused to settle such bill on May 8, 1911, on the ground that the same had not been served within the time required by law. On June 9, 1911, the motion for relief was made, the grounds thereof being “mistake, inadvertence, surprise and excusable neglect,” and this motion was denied on June 16, 1911.

The bill of exceptions on appeal from the order denying relief shows that the action was one for the specific perform

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anee of an alleged contract for the sale of real estate. The action was tried May 31, 1910. Decision in writing (findings of fact and eonelnsions of law) was filed, and judgment that plaintiff take nothing, was given and entered early in July, 1910, and plaintiff was given notice of the entry of judgment, together with a copy of the findings, as early as July 15, 1910. Within ten days after such notice, plaintiff served and filed his notice of intention to move for a new trial. Plaintiff was desirous that certain of the findings of fact be amended on motion, and various stipulations were made extending the time of plaintiff to prepare and serve his bill of exceptions in order that he might defer such serving and filing until such motion could be made and determined. Finally, in November, 1910, stipulation was made by the attorneys for both parties, “that the motion to amend or change the findings of fact and conclusions of law will be heard on the 10th day of November, 1910, and the time to appeal or make motion for new trial will immediately commence on the day on’ 'which the order is made on such motion; that this stipulation hereby sets aside and abrogates any and all stipulations heretofore made in regard thereto.” No stipulation or order purporting to extend plaintiff’s time was subsequently made. The motion to amend was heard, and on December 16, 1910, the court made and filed its order, which was signed by the judge, purporting to strike out a certain finding of fact as to the value of the land at the time of the signing of the alleged contract 'of sale, and the increase of value thereafter, and to substitute in lieu thereof a new one in regard to the same matters, but showing a lesser value and a smaller increase in value, and adjudging that in all other respects the findings stand as they were originally made and filed. A copy of this order was sent to and received by certain of the attorneys of record for plaintiff on December 17, 1910. On one side it is claimed and on the other it is denied that there were subsequently certain conversations between attorneys for the respective parties as to the necessity of preparing and having filed new findings and a new judgment, in which one of the attorneys for defendant stated that he proposed to so do. On this proposition, however," there is a sufficient conflict in the evidence to make the ease solely one for the trial court. On March 2, 1911, defend