Brode v. Goslin

California Supreme Court Dec 1, 1910 No. L.A. No. 2677.Published

Before: Angellotti

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Holding. The court held that appeals from orders denying a new trial and a motion to vacate a judgment were timely and properly before the court, but that an order refusing to settle a bill of exceptions is not appealable, as the exclusive remedy is mandamus.

Issues

Whether an appeal from an order denying a new trial or motion to vacate a judgment requires the orders to be contained in a bill of exceptions.
Whether the appeals were filed within the statutory time limits.
Whether an order refusing to settle a bill of exceptions is an appealable order.
Whether the court should strike matters from the transcript prior to a hearing on the merits.

Disposition. Dismissed in part; denied in part.

Quotations verified verbatim against the opinion

“It is not necessary that the orders appealed from should be contained in any bill of exceptions or statement.”

“The appeal from the refusal of the trial judge to settle appellant’s proposed bill of exceptions is dismissed.”

Synopsis

Appeal—Authentication of Orders Appealed from.—On an appeal from an order denying a new trial and an order denying a motion to vacate a judgment, it is not necessary that the orders should Ibe contained in a bill of exceptions or statement. Copies of the orders, certified by the clerk, together with a copy of the notice of appeal, are all that are requisite to sustain the appeal.

Id.—Alternative Method of Appeal—Notice of Entry—Time to Appeal.—Under the alternative method of taking appeals, (Code Oiv. Proc., sees, 941a and 941b), where no notice of entry of an order denying a new trial was ever served, an appeal from the order, taken more than sixty days but within six months from the date of its entry, is in time.

Id.—Befusal to Settle Bill of Exceptions—Order not Appealable— Mandamus Sole Remedy.—An appeal will not lie from the refusal of the judge of the trial court to settle a bill of exceptions on the ground that it had not been presented within the time allowed by law, there having been no application for relief under section 473 of the Code of Civil Procedure. If, in fact, the bill was presented in time, and the trial judge erroneously concluded it was not, the exclusive remedy is mandamus to compel the settlement.

Id.—Striking out Extraneous Matter from Transcript.—The appellate court will not, in advance of a hearing of an appeal on its merits, consider a motion to strike from the transcript matters contained therein, on the ground that-they were not properly authenticated. If, in a consideration of the appeal, such matters have no place in the record, they will be disregarded. .

ANGELLOTTI, J.

Motion by respondents for an order striking out certain matters contained in the transcript on appeal and also to dismiss appeals taken by defendant Ritter from an order denying his motion for a new trial, from an order denying his motion to vacate the judgment in said action, and from an order refusing to settle a bill of exceptions to be used on appeal.

The only grounds urged for the dismissal of the appeals from the order denying a new trial and the order denying the motion to vacate the judgment are that the appeals were not taken in time, and that the orders appealed from are not contained in any bill of exceptions or statement.

As to the latter ground: It is not necessary that the orders appealed from should be contained in any bill of exceptions or statement. Copies of the orders appealed from certified by the clerk, together with a copy of the notice of appeal, are all that are requisite to sustain the appeal from such orders. (Code Civ. Proc., secs. 951, 952.) It may be that without a bill of exceptions or statement showing facts upon which error in making the orders is apparent, the appellant is not likely to succeed upon his appeal, but this goes to the question of the merits of the appeal and does not warrant a dismissal.

The order denying the motion to vacate the judgment was made February 21, 1910, and the appeal therefrom was taken April 6, 1910. This was within the sixty days allowed by subdivision 3 of section 939 of the Code of Civil Procedure.

The order denying a new trial was made January 10, 1910, and the appeal therefrom was not taken until April 6, 1910, which was more than sixty days from the making of the order. The record does not show, however, that notice of entry of said order was ever served on appellant’s attorneys of record

[701]

(see

Foss

Johnstone, ante,

p. 119, [110 Pac. 294, 296]), and it was expressly admitted at the argument of this motion that no such notice had ever been given. In view of the provisions relating to an alternative method of taking appeals, appellant had sixty days from the giving of such a notice within which to take an appeal, provided that the appeal must in any event be taken within six months. (Code Civ. Proc., secs. 941a and 941b.) The appeal therefore was in time.

Brode v. Goslin

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Synopsis

ANGELLOTTI, J.

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