Keown v. California Pacific Realty Co.

[770]

RICHARDS, J.

The petitioner has applied to this court for the settlement by it of a bill of exceptions in a certain action entitled California Pacific Realty Company, a Corporation, Plaintiff,

v.

California Pacific Title Insurance Company, a Corporation, and James A. Keown, Defendants, which action was commenced in the Superior Court in and for the City and County of San Francisco, State of California, on February 3, 1926, and which, after due service of process upon the defendants therein and after issue joined, came on for trial on January 16, 1928. Upon the trial and submission of the cause the trial court rendered and entered its judgment on February 17, 1928, in favor of the plaintiff and against the defendant James A. Keown, the petitioner herein. Notice of the judgment and the entry thereof was duly served upon the petitioner on February 21, 1928. On March 14, 1928, the petitioner filed his notice with the clerk to prepare the transcript on appeal from such judgment under the provisions of section 953a of the Code of Civil Procedure and which, according to the admissions of his petition herein, was too late, as having been filed ten days beyond the time provided in said section. The trial court accordingly refused to permit the petitioner, as appellant therein, to have prepared a transcript upon his appeal under the provisions of said section of the code; whereupon, and on April 13, 1928, the said defendant filed a second notice of appeal, and on April 20, 1928, moved the trial court

ex parte

to extend his time to perfect his appeal. The trial court denied his motion, but in doing so allowed the defendant thirty days’ additional time to prepare a bill of exceptions upon said appeal. On May 2, 1928, the trial court made a further

ex parte

order, upon the defendant’s application, allowing him an additional thirty days within which to prepare said bill of exceptions. On June 18, 1928, the said defendant presented and filed his bill of exceptions, and on July 9, 1928, applied to said court for the settlement thereof. On July 10, 1928, the respondent upon said appeal, California Pacific Title Insurance Company, presented and filed its objections to the settlement of the appellant’s proposed bill of exceptions. The appellant’s application for the settlement of said bill of exceptions and the respondent’s opposition thereto came on for hearing before the trial court on September 28, 1928;