Klann v. Hoffman

SLOSS, J.

Action to foreclose mechanic’s lien. Plaintiff had judgment, from which, and from an order denying his motion for a new trial, the defendant owner appeals.

[764]

The respondent makes a preliminary objection to the consideration of the statement on motion for new trial, or of the ruling denying such motion, upon the ground that notice of intention to move for a new trial was not filed and served within the time allowed. It appears that written notice of the entry of judgment was served upon the appellant on January 16, 1914. This started the running of the period of ten days within which he was required, if he desired to move for a new trial, to file with the clerk and serve upon the adverse party a notice of his intention so to do. (Code Civ. Proc., see. 659.) At the time of the proceedings here in question, the section just cited had not yet been amended so as to prohibit an extension of this time by order or stipulation. (See Stats. 1915, p. 201.) On January 21, 1914, the appellant obtained from the court an order granting him “ten days in addition to the ten days required by law in which he may file his motion of intention to move for a new trial in said cause.” Within the time, as thus extended, he duly served and filed his notice of intention. It is objected that the order of extension was ineffectual for two reasons. The first objection, based upon the appearance in the order of the word “motion,” instead of “notice,” is'not worthy of serious consideration. The use of this inappropriate term was manifestly the result of a mere clerical error, which could not mislead anyone. The further point is that the order of court merely extended the time for filing, but not the time for serving, the notice, both steps being essential to the initiation of a proceeding for new trial. We are not disposed to give to the order so. narrow and literal an interpretation. The appellant, in applying to the court, was doubtless seeking additional time within which to take the steps required to enable him to move for a new trial. It is hardly to be supposed that the court intended to give him ten days to file his notice, without at the same time extending his time to serve it. The rulings of the court heretofore have been in the direction of a liberal construction of orders of this kind. In

Cottle

v.