Massachusetts Bonding & Insurance Co. v. Superior Court

WILBUR, C. J.

The petitioner seeks a writ of

mandamus

to compel the respondent to settle a proposed bill of exceptions on an appeal from a judgment rendered against the petitioner by reason of its default in failing to answer a cross-complaint filed by L. P. St. Clair and H. A. Jastro, wherein said cross-complainants sought to recover against petitioner upon an insurance policy in the sum of five thousand dollars, indemnifying them for damages on account of bodily injury suffered by the employees of the cross-complainants.

The cross-complaint was filed in an action brought by J. L. Haggard against the St. Clair & Jastro Oil Co., but in the amended complaint judgment was sought against the members of the M. & S. Oil Co., a copartnership, said cross-complainants, L. P. St. Clair and H. A. Jastro, being members of said copartnership. The petitioner filed the necessary papers and moved the court to transfer the case to the federal court on the ground of diverse citizenship. That motion being denied, the petitioner suffered default on the cross-complaint, and within thirty days after the entry of default judgment served proper notice of an appeal from such judgment. Within ten days thereafter, petitioner served his proposed bill of exceptions, containing the pleadings in the case, the papers upon the motion for the removal

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of the case to the federal court and the default judgment, and sought to have the bill of exceptions certified' and allowed by the trial judge. The trial judge refused to settle the proposed bill of exceptions and the day thereafter resigned, and this application is made to compel his successor to settle the proposed bill.

The respondent claims that the proposed bill of exceptions was served too late, and for that reason that the refusal of the respondent to allow the same was.proper. This proposition is based upon the last paragraph of section 650 of the Code of Civil Procedure as amended in 1911 (Stats. 1911, p. 400), and as subsequenty amended in 1915 (Stats. 1915, p. 207). This paragraph is as follows: “No bill of exceptions, notice of appeal, or notice or paper, other than amendments to the pleadings or an amended pleading, need be served upon any party whose default has been duly entered, or who has not appeared in the action or proceeding.” The respondent’s contention is, in effect, that inasmuch as the petitioner was in default and the statute expressly provides that no notice of the entry of the judgment need be served upon the petitioner that, therefore, the time for the filing of a proposed bill of exceptions must run from the date of the judgment and not from the date of notice of the entry of the judgment which otherwise would set in motion the time for the preparation of the bill of exceptions.