Simpson v. Budd

De Haven, J. Application for a writ of mandate.

In an action by Simpson and Gray, the petitioners herein, against Peyton et al., tried in the superior court of San Joaquin County, the findings of the court were filed, and judgment thereupon rendered, and entered December 22, 1890, against said petitioners. It does not appear that any notice of the decision was ever served upon petitioners, but on January 2, 1891, a stipulation was filed in said court which shows they had actual knowledge at that date of the rendition of the judgment, and for the purposes of this decision it will be assumed that they had notice thereof at that time. Five days thereafter, the attorneys for the defendants in that action signed and delivered to the attorneys of the petitioners a written stipulation by which it was stipulated and agreed that the petitioners here should have thirty days from the date thereof “ within which to prepare, serve, [490]and file a bill of exceptions, notice of motion for a new trial, and statement on motion for a new trial.” This stipulation was not filed with the clerk of the court until April 15, 1891, nor was there any order of the court, or of the judge thereof, extending the time within which the acts named in the stipulation might be done. The notice of motion for a new trial was filed and served within the time given by the stipulation; and within ten days thereafter, to wit, on February 14, 1891, the petitioners prepared and served a proposed bill of exceptions, and the defendants in that action prepared amendments thereto, and the same afterwards came before the respondent for settlement. No objection was made by the attorneys for the defendants to the settlement of the bill of exceptions, for the reason that the notice of motion was not given in time, but objection was made to such action upon the ground that the copy of said notice served upon them was not signed by the attorneys for petitioners.

The respondent refused to settle the bill of exceptions upon the ground that the notice of intention to move for a new trial was not served and filed in time, and that the proposed bill of exceptions was not prepared and presented in time.

Upon these facts, the only question for decision is, whether the statutory time for givingnotice of intention to move for a new trial, and the preparation of bills of exception, can be extended by a stipulation of counsel not filed within the statutory time; and of this we entertain no doubt.