Cottle v. Leitch

[321]By the Court,

Wallace, C. J.: The appeal here is taken from an order granting the motion of the defendant for a new trial.

The action was tried by the Court without the intervention of a jury. Findings were filed and judgment rendered for the plaintiff on the 25th day of January, 1869. On that day an order was entered which, so far as is material, is as follows:

“ On motion of the defendant, it is ordered that all proceedings by the plaintiff on the decision and judgment this day rendered be stayed for thirty days, wherein the defendant may prepare papers on application for a new trial. The time given by statute for preparing and filing and serving on plaintiff’s attorney exceptions to the findings herein is extended thirty days, and the defendant is allowed also like thirty days for preparing and filing motion for a new trial and a statement or affidavits, or both, therewith.”

On the twenty-eighth of January the defendant filed and served his notice of intention to move for a new trial, and on the twenty-ninth of January the plaintiff served and filed notice of the filing of the findings. On the twenty-fifth of February the defendant filed the statement in support of the motion for a new trial, and on the sixth day of May following the plaintiff filed his proposed amendments to the statement “without waiving any right to move to deny said motion on the ground that defendant’s statement was not filed in time;” and subsequently filed additional proposed amendments.

First—The order of January twenty-fifth extended the time of the defendant to give notice of intention to move for a new trial thirty days-. (Practice Act, Sec. 530; Harper v. Minor, 27 Cal. 113.) He, however, derived no benefit [322]from that extension, because he saw fit to give notice of his intention to move for a new trial on the twenty-eighth of January, which was before he had received notice of the filing of the findings and before even the ten days allowed him by the statute itself had commenced to run.

Second—Looking at the order as one extending the time allowed by statute to file the statement, the most favorable view that can be taken for the defendant is to hold it as an order extending the time twenty days—not thirty, as on its face it purports to do—for the statute forbids any extension greater than twenty (Sec. 195), and section five hundred and thirty has no applicability to the time for filing a statement on motion for a new trial. (Harper v. Minor, supra.)