Campbell v. Jones

By the Court, Sprague, J.: The verdict of the jury was rendered on the 17th clay of May, 1870. On the 18th day of May, 1870, "defendant duly served and filed his notice of motion for new trial, and on the same day requested the District Judge, out of Court, to grant an order for five days additional time to file statement on motion for new trial. The District Judge, on said request, said that at the meeting of Court he would have said order entered of record in said cause, but failed tq have the order made of record by oversight. Thereupon defendant’s attorney left Auburn, the county seat, before the opening of Court, and filed said statement within the ten days, to wit: on the 28th day of May, 1870. It does not appear that respondent proposed or offered any amendments to the statement thus filed, and the same was settled and certified as correct by the Judge on the 21st day of June, 1870.' On the same day the motion for a new trial came on to be heard before the Judge; the respondent appeared by his counsel and “ objected to the statement on file, upon the ground that the same had not been filed in time, and moved to strike it out,” which motion was by the Court overruled, to which ruling respondent’s counsel duly excepted. Thereupon the motion for a new trial was argued and submitted, and by the Court overruled, from which order overruling defendant’s motion for a new trial, as also from the judgment, defendant brings this appeal. And now, on appeal, respondent moves to strike out defendant’s statement on motion for a new trial, on the ground that the same was not filed in proper time. Appellant, in response to this motion, [518]insists that the mere oversight of the Judge, in not causing to be entered in the minutes of his Court in accordance with his promise and intention, an order extending the time for appellant to file his statement five days, should not be held a waiver of his right to file and have the benefit of his statement.

An order extending the minimum time fixed by statute for filing statement, on motion for a new trial, should in all cases be in writing, and either entered in the minutes of the Court, in open session, or signed by the Judge, and filed, with the papers in the case, within the time prescribed by the one hundred and ninety-fifth section of the Practice Act. To hold that a verbal promise-of the Judge to cause an order to be entered, or that a verbal request for an order, verbally granted by the Judge, was sufficient to extend the time for filing the statement, would lead to great confusion and needless controversies. The statement in the present case was not filed by appellant within five days after the filing of the notice of his intention to move, and there was no order of the Court or Judge extending the time beyond the five days. The right of appellant to move for a new trial was, therefore, waived before his statement was filed, and the order of the Court denying his motion cannot be reviewed on this appeal. (Practice Act, Sec. 195; Caney v. Silverthorn, 9 Cal. 67; Munch v. Williamson, 24 Cal. 167; Easterby v. Larco, 24 Cal. 179; The Bear River and Auburn W. and Mg. Co. v. Boles, 24 Cal. 354; Jenkins v. Frink, 27 Cal. 337; Hegeler v. Henckell, 27 Cal. 491; Le Roy v. Rassette, 32 Cal. 171.)