Tregambo v. Comanche Mill & Mining Co.

McKee, J.: This case arises out of an action which was commenced in the late District Court of Mono County by the respondents, who were plaintiffs in the Court below, to obtain a judgment [503]and foreclosure of mechanics’ liens upon the property of the Comanche Mill and Mining Company, the defendant and appellant. Process was served on the company in San Francisco March 22nd, 1879. May 2nd, 1879, default of defendant for not answering was entered. Motion to set aside this default and allow defendant to answer was made upon affidavits, and denied by the Court on May 10th, 1879. When the decision was rendered the attorneys for the defendant were present, and excepted; but they presented no bill of exceptions to the judge, as they might have done under § 649 of the Code of Civil Procedure. In that position of the parties the Court referred the case to the Court Commissioner, and upon the coming in of his report, judgment was rendered and entered in favor of the plaintiffs against the defendant on the 19th of May, 1879; and on the 20th of May, 1879, the defendant appealed from the j udgment and order denying .the motion to set aside the default. More than twenty days after the judgment, the judge of the the Court settled a bill of exceptions taken to the order refusing to set aside the default, and more than thirty days after the appeal had been taken the settled bill of exceptions was filed.

An order refusing to set aside a default is not an appealable order. Therefore, the only appeal before us is from the judgment, and that presents for consideration the judgment roll only, unless the bill of exceptions contained in the transcript is to be considered as part of the record of the case." The respondents attack it as too late, because it was not presented for settlement at the time the exception was taken, according to § 649 of the Code of Civil Procedure.

But that section only declares that a bill of exceptions to any decision may be presented to the court or judge for settlement at the time the decision is made; and after having been settled, shall be signed by the judge, and filed with the clerk. If a statute absolutely fixes the time within which an act must be done, it is peremptory. The act cannot be done at any other time, unless during the existence of the prescribed time it has been extended by an order made for that purpose under authority of law. Section 1054 of the Civil Code of Procedure authorizes such an extension to be made within the limits of thirty days. But no order extending time in this case was [504]