Cameron v. Arcata & Mad River Railroad

HARRISON, J.

The plaintiffs are the surviving widow and infant child of Alexander D. Cameron, deceased, and recovered judgment herein against the defendant in the sum of ten thousand dollars damages for the death of the deceased, resulting

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from the negligence of the defendant. From this judgment and an order denying a new trial the defendant has appealed, bringing the case here upon the judgment-roll and a bill of exceptions. The respondents insist that the appellant is not entitled to have the bill of exceptions considered, for the reason that it was not prepared or served upon them within the time provided by the statute, and that the judge had no jurisdiction to settle the same.

The verdict of the jury was rendered September 3, 1897, and judgment th'ereon was entered upon the next day. September 10th the defendant served upon the plaintiffs, and filed with the clerk, its notice of intention to move for a new trial. The defendant did not serve upon the plaintiffs its proposed bill of exceptions until October 29th, and the plaintiffs then objected thereto upon the ground that the same was served too late. November 8th the plaintiffs, reserving an objection to the proposed bill of exceptions that it was served too lat<j, proposed amendments thereto, and when the same was presented to the judge for settlement again objected to its settlement upon the same ground. It was shown, at that time, and appears from the bill of exceptions itself, that on September 4th the court extended the defendant’s time thirty days within which to prepare and serve its proposed bill of exceptions, and that on October 4th the court extended the time for preparing and serving said bill for thirty days further. Each of these extensions was made upon the

ex parte

application of the defendant, and without the consent of the plaintiffs, and it also appears that the plaintiffs did not at any time stipulate or consent to any extension of time for the preparation and serving of any bill of exceptions. The judge overruled and disallowed the objection of the plaintiffs, and settled and signed the bill, and the same was then filed.

Section 1054 of the Code of Civil Procedure provides: "When an act to be done as provided in this code relates to ... . the preparation of statements or of bills of exception, or of amendments thereto, the time allowed by this code may be extended upon good cause shown by the judge of the superior court in and for the county in which the action is pending, or by the judge who presided at the trial of said action; but such exten