Murphy v. Stelling

[642]

BEATTY, C. J.

This is a motion to dismiss defendant’s appeal from an order of the superior court denying his motion for relief on the ground of surprise, accident, etc., under section 473 of the Code of Civil Procedure. The ease is this: After judgment in favor of plaintiff, defendant gave notice of a motion for a new trial, to be based upon a statement of the case. In due time a draft of a proposed statement was served, to^ which amendments were proposed by plaintiff. Defendant refused to adopt the amendments, and applied to the court to settle the statement. When the matter came on for hearing, plaintiff objected to the settlement upon the ground that the defendant had failed to deliver his proposed statement, with the proposed amendments, to the clerk,-for the judge, within the time prescribed by the statute. (Code Civ. Proe., sec. 659.) Upon the evidence then submitted the court sustained plaintiff’s objection, refused to settle the statement, and dismissed the proceeding. Three days thereafter the defendant gave notice of a motion to be relieved from that order, upon the ground that it had been taken against him by “surprise, accident, and excusable neglect.” (Code Civ. Proc., sec. 473.) In support of the motion he filed a number ■of affidavits, and at the hearing adduced other evidence in .addition to that upon which his original application for a .•settlement of the statement had been submitted. The court, Ihowever, deniéd the motion for relief, and that is the order from which this appeal is taken.

i In the printed briefs the motion to dismiss is based upon two grounds: 1. That the refusal to settle a statement is not an appealable order, and,

a fortiori,

that a refusal to vacate such an order cannot be appealable; and 2. That if a refusal to settle is appealable the appeal must be taken therefrom directly, and cannot be prosecuted from the order in question here, which, it is claimed, is in substance merely a refusal to set aside an order itself appealable. In the oral argument respondent abandoned the first proposition, and contended, on the - authority of

Stonesifer

v.

Armstrong,