Burton v. Todd

Searls, C. — This is an appeal from an order of the Superior Court made after final judgment, dismissing and refusing to settle a statement on motion for a new trial.

The facts essential to an understanding of the question involved are as follows: —

Judgment was rendered in favor of defendant February 5, 1885.

Notice in writing of the filing of the fihdings and rendition of judgment was duly served upon plaintiff’s attorney February 9, 1885.

On the thirteenth day of February, 1885, the judge of the Superior Court, by an order made ex parte, without notice to or consent of attorney for defendant, extended the time for twenty days to file and serve notice of motion for a new trial, or to prepare and serve a bill of exceptions, as plaintiff might elect.

On the fourth day of March, 1885, plaintiff’s attorney served and filed a notice of motion for a new trial.

This notice, as will be seen, was not served and filed within ten days after service of notice of filing of findings and entry of judgment, but was served and filed before the expiration of the time as extended by the judge.

Upon the service of a statement upon him on motion for new trial, counsel for defendant served formal objections to the motion as not being in time, and subject to such objections served amendments to plaintiff’s statement, and thereafter the matter coming on before the court the application to settle statement was dismissed, because the notice of motion was not made in time.

The question presented relates to the power of the judge of the court below to extend the time for service and filing of a notice of motion for new trial.

[487]Section 659 of the Code of Civil Procedure provides that: “ The party intending to move for a new trial must within ten days after the verdict of jury if the action was tried by a jury, or after notice of the decision of the court .... if the action were tried without a jury, file with the clerk and serve upon the adverse party a notice of his intention,” etc.

Section 1054 of the same code, as amended in 1880, provides that “ when an act to be done, as provided in this code, relates to the pleadings in the action, . . . . or to the service of notice other than of appeal, the time allowed by this code may be extended upon good cause shown by the court in which the action is pending, or a judge thereof; but such extension shall not exceed thirty days without the consent of the adverse party.”