California National Bank v. El Dorado Lime & Minerals Co.

THE COURT.

This is an appeal by certain of the above-named defendants from an order of the superior court of the county of Sacramento denying a motion for relief under section 473 of the Code of Civil Procedure from a default in the preparation, service, and filing of a proposed bill .of exceptions to be used on an appeal from the judgment entered in the above-entitled action.

The judgment herein was entered on May 20, 1925. An order denying a motion for new trial was made on July 1, 1925, and notice thereof served on the appellants on July 3, 1925. Thereafter and on application the trial court granted to the appellants certain extensions of time within which they might serve and present their proposed bill of exceptions. When read together the several orders of the court below extended the appellants’ time approximately three months from the last day prescribed by statute (sec. 650, Code Civ. Proc.) for the preparation and service of a proposed bill of exceptions. On October 6, 1925, the proposed bill was served on the respondent, together with a notice of motion for relief from default in said service. The respondent had previously indorsed a reservation of all objections to service of the proposed bill upon a copy of the last order extending time to the appellants.

[454]

A reading of the record and the briefs herein discloses that the appellants’ delay in the service of the proposed bill of exceptions is traceable to their reliance upon the orders of the court below

extending time

therefor and to an asserted “physically impossible” task of completing the proposed bill within the statutory period.

The rule of law is well settled that motions for relief from default under the remedial provisions of section 473 of the Code of Civil Procedure are addressed to the sound discretion of the trial court and an appellate court will not, in the absence of a clear showing of abuse in the exercise thereof, disturb the action of the court below. It is the policy of the law to favor, wherever possible, a hearing on the merits.

(Waybright

v.