Bank of Orland v. Finnell

SMITH, C.

—The suit is to recover money alleged to be due on a parol contract, the terms of which are set out in the com

[476]

plaint. The defense is a denial of the material allegations of the complaint, and as an affirmative defense, in effect, that, by a subsequent agreement, the contract was satisfied and discharged. The cau^e was' tried by a jury, who returned a verdict for the plaintiff, and judgment was entered accordingly. The appeal is from the judgment.

The preliminary point is made by the respondent’s attorneys, that the bill of exceptions was not served and presented for settlement in time, and must therefore be disregarded. Upon the rendition of the verdict, and before the entry of judgment, an order was made by the court granting to the defendant thirty days in addition to the time required by law within which to serve and file bill of exceptions. The judgment was entered September 27, 1899. On the day fixed for the settlement of the bill, plaintiff’s counsel objected to the settlement, on the ground that the copy of the bill bad not been served on them “ within ten days after the entry of judgment.” But as the defendant’s time had been extended, the objection was obviously untenable, and was rightly overruled.

It is urged, however, that “ it does not appear from the bill of exceptions” that it was served on the plaintiff’s attorneys within the additional thirty days allowed by the order, and that the order itself was void because made before judgment. But the making of the order in advance of the judgment was entirely unobjectionable, and regular, and with reference to the other objection, it is sufficient that the contrary does not appear. The certificate of the judge carries with it the presumption of regularity.

(Sullivan

v.

Wallace,

73 Cal. 307.) The decision in

Connor

v.

Southern California M. R. Co.,

101 Cal. 429, cited by the respondent’s counsel, does not conflict with this familiar and well-established principle. It is, indeed, asserted by the respondent’s counsel that the bill in fact was not served on them within the extended time. But the appellant’s counsel (in language more vigorous than appropriate to this court) denies the fact, and this leaves the question to be decided by the certificate of the judge, and the presumption in favor of the regularity of his proceedings.