Lake Shore Cattle Co. v. Modoc Land & Livestock Co.

HENSHAW, J.

This appeal is from the order of court dismissing defendant’s motion for a new trial for want of diligence in its prosecution, and for unnecessary and vexatious delay in the engrossment of the statement on the motion. The statement on motion for a new trial was settled upon September

25,

1896, by the Hon. C. L. Claflin, then judge of the trial court, and the judge who tried the cause. The moving party was given until November 25, 1896, to engross the statement as settled. Before November 25th the statement was delivered to the adverse attorneys for comparison, and to the judge for his certificate and signature. It did not receive the judge’s signature, but no intimation was made to appellant’s attorneys, either by the judge or by opposite counsel, that the engrossed statement was defective or incomplete. Later appellant’s attorneys obtained possession of the engrossed statement, and presented it to the judge for his signature on December 30, 1896. The judge’s term of office was about to expire, and the attorneys were informed that he proposed leaving the county and going to Los Angeles, as in fact he did. The judge returned to and was present at the county seat for about ten days in the early part of the month of February, hut during that time the attorney for the appellant who liad charge of this particular matter, being much pressed with other business affairs, neglected to re-present the statement to the judge. On February 17th, the plaintiff in the action served notice upon defendant of its motion to dismiss defendant’s motion for a new trial upon the indicated grounds, and upon the same day served a subpoena

duces tecum

upon one of the attorneys for defendant to produce the settled statement. Hpon the hearing these facts were disclosed, and in addition it was shown that Judge Claflin ha.d never refused to sign the engrossed statement, but had made objection to signing the statement offered to him upon the ground that it was incomplete in certain particulars. . Appellant here further showed that it had been unable to forward the statement to Judge Claflin in Los Angeles, or to take it to him for his certification, because of the subpoena

duces tecum

which had been served upon its attorney, and it sought leave of

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