Smith v. City of Stockton

Foote, C. — This is an appeal from an order made after final judgment, allowing the plaintiff to amend his statement on motion for a new trial.

It will be perceived that when the motion was made to incorporate in the proposed statement a specification of particulars, wherein the evidence was alleged to be insufficient to sustain the verdict of the jury, that the certificate of the judge who tried the cause that said statement had been settled had not been attached thereto, and that said statement had never been settled or certified to at all. Hence the proceeding which the plaintiff was seeking to have amended had not been taken or completed in a legal sense, so as to be susceptible of having applied to it the statutory limit of six months, under section 473 of the Code of Civil Procedure. (Hayne on New Trial, sec. 160, p. 479.)

The statement as proposed contained the evidence which it was contended did not sustain the verdict; therefore the specification' of the particulars of its insufficiency for that purpose might properly be made. (Hayne on New Trial, sec. 160, p. 477.)

There was no preparation of a new statement. It was an attempt to complete that which would have otherwise been invalid, and before the statutory period of limitation of six months had begun to run, and that was allowable under the section of the Code of Civil Procedure, supra, if done within a reasonable time, to be determined by a proper legal discretion, which we think was duly exercised by the trial court, considering all the circumstances surrounding the matter under discussion.

The order should therefore be affirmed.

Belcher, C. C., and Hayne, C., concurred. The Court. — For the reasons given in the foregoing opinion, the order is affirmed.