Henry v. Merguire

California Supreme Court Feb 25, 1895 No. No. 18328Published

Before: Belcher

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Holding. A trial court cannot consider a statement on motion for a new trial if the moving party failed to present it for settlement within the statutory time limit and provided no excuse for the delay. The judge's certificate settling such a statement is not an appealable order, but the objection to the untimely presentation may be raised on appeal from the order granting or denying the new trial.

Issues

Whether a judge's certificate settling a statement on motion for a new trial is an appealable order.
Whether a statement on motion for a new trial can be considered by the court if it was not presented for settlement within the statutory time limit and the delay is unexplained.

Disposition. reversed

Quotations verified verbatim against the opinion

“This did not, in our opinion, constitute a special order made after final judgment. It was simply a certificate and not an appealable order.”

“The moving party must prepare and serve his statement within the time allowed by law for that purpose, or it cannot be settled; or, if settled, cannot be considered either at the hearing of the motion or on appeal to this court.”

“To hold that the statement maybe settled when no steps were taken until after the expiration of the ten days, the time for doing so not having been extended, and respondent objecting thereto, would be a judicial abrogation of the statute.”

Synopsis

Appeal — Settlement of New Trial Statement — N onappe al able Order.—The certificate of a judge settling an engrossed statement on motion for a new trial does not constitute a special order made after final judgment, and is not an appealable order.

Id.—Review of Settled Statement.—When the judge settles a bill of exceptions or statement, the record is made up; and if, on its face, it shows that the statute was not followed in preparing the record, that fact may be urged in the lower court, and on appeal, as a reason why the motion for a new trial should be denied.

Id.—Fatal Delay in Presenting Statement—Renewal of Order Granting New Trial.—Where the record shows that the proposed statement on motion for a new trial, and the proposed amendments thereto, were presented to the judge upon notice after the expiration of the ten days prescribed by law, and that the settlement was objected to by the other party, and no excuse appears in the record for the delay, the delay is fatal, and the court has no right, on hearing the motion, to consider the statement, nor can it be considered on appeal, and an order granting a new trial on such statement must be reversed.

Belcher, C. This is an appeal by the plaintiff from an order granting the defendant’s motion for a new trial. The motion was made upon a statement of the case, and was granted upon the ground that “ the evidence is insufficient to justify the verdict of the jury and decision of the court.”

The first point made for a reversal is that the statement was not presented for settlement within the ten days prescribed by law, and hence it formed no legal basis to support the motion, and the order granting the motion was erroneous.

Upon this point the statement shows the following facts: “The proposed statement was served on plaintiff November 21, 1893, and on November 28th the plaintiff served his proposed amendments. Thereafter, and within five days after November 28, 1893, the defendants served notice on plaintiff that said proposed amendments were not accepted, and that said proposed statement and the proposed amendments thereto would be presented to the court for settlement on December 11,1893. On said December 11th, when presented, the plaintiff objected to the settlement of said statement on the ground that presentation was not made in time, and said objection was overruled by the court and the said statement settled, the plaintiff excepting.”

And the order granting the motion states that plaintiff’s counsel “opposed the motion on the merits and on the ground that the said statement was not presented for settlement within the statutory time,” and excepted to the ruling of the court.

[145]Section 659, subdivision 3, of the Code of Civil Procedure provides: “If the amendments be adopted the statement shall be amended accordingly, and then presented to the judge who tried or heard the cause for settlement, or be delivered to the clerk of the court for the judge. If not adopted the proposed statement and amendments shall, within ten days thereafter, be presented by the moving party to the judge, upon five days’ notice to the adverse party, or delivered to the clerk of the court for the judge; and thereupon the same proceedings for the settlement of the statement shall be taken by the parties, and clerk, and judge, as are required for the settlement of bills of exception by section 650.....When settled the statement shall be signed by the judge or referee, with his certificate, to the effect that the same is allowed, and shall then be filed with the clerk.”

The respondents contend that the settlement of the statement was an appealable order, and that, as it was not appealed from, appellant cannot on this appeal raise the point now presented. And in support of this position section 939, subdivision 3, of the Code of Civil Procedure, and several cases are cited.

Henry v. Merguire

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