Marr v. Southern California Gas Co.

THE COURT.

This is á motion to dismiss the appeal on the ground that the appellant has not filed her transcript upon appeal within the time allowed by law. In support of the motion respondents show by affidavits and by the certificate of the clerk of the trial court that the time has elapsed for the preparation and filing of a transcript under the so-called alternative method, and that no proceedings have -been instituted by the appellant therefor, and they show further “that no bill of exceptions to said judgment or to any proceeding at said trial has been settled or filed, and that no proceeding for the settlement of any such bill of exceptions is now pending or has ever been instituted.” In response thereto appellant contends that a bill of exceptions for use upon this appeal has in fact been settled and that the time allowed her by law for the filing of a transcript thereafter had not expired at the time this motion was made.

The record before us shows that a paper purporting to be a “bill of exceptions on order denying plaintiff’s motion for new trial” was in fact settled and allowed by the trial court herein as a bill of exceptions, and if this does constitute in fact and in legal effect a bill of exceptions which may properly be used upon this appeal from the judgment the appellant is not in default and the motion must be denied. The purported bill of exceptions is very brief. It recites the coming on of the case for trial, the trial thereof before the court without a jury, the making and filing of findings of fact, conclusions of law and judgment thereon against the plaintiff, the service and filing by plaintiff of notice of intention to move for a new trial with a copy of the notice of intention, the setting of the same for hearing, the making of said motion for new trial and argument thereof and that the same was argued and denied, the minute order thereon being as follows: “Motion for new trial comes on for hearing, plaintiff appearing

in propria persona,

and Paul E. Schwab et al. for defendant. Motion for new trial is argued and denied.” It recites the service of notice of the order denying the new trial, an order extending

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plaintiff’s time within which to prepare and serve a bill of exceptions to be used upon appeal from the judgment, the preparation and service of this proposed bill of exceptions, and the certificate of the trial judge certified that “the foregoing bill of exceptions is settled and allowed as correct. ’ ’