Sprigg v. Barber

VAN FLEET, J. This is a motion by appellant for an order directing the superior court, in which the action was tried, to entertain and hear a motion to vacate and set aside a certificate of allowance and settlement made by the judge of said court on the eleventh day of September, 1896, of a statement on appeal in said action, and to amend such statement by inserting therein and adding thereto certain matter inadvertently omitted by appellant in the statement as proposed by him and settled by the judge.

On June 26, 1897, some nine months after the date of the settlement of said statement, and after the filing of the transcript and briefs in said cause in this court, the appellant made application to' the court below to grant him the relief which he now seeks to compel by the present motion, but that court refused to entertain the application and denied the motion upon the ground that it had no jurisdiction, owing to lapse of time, to grant the relief asked. Thereupon the present motion was made in this court.

Whether in any ease a plaintiff can, by mere motion, obtain the character of relief here sought, need not be determined, since obviously it cannot be had in this instance. The presentation and settlement of a bill of exceptions or statement of the case is a “proceeding” within the provisions of section 473 of the Code of Civil Procedure, an application to amend or correct which, after settlement, is governed by and must be made within the limitation prescribed by that section. (Flynn v. Cottle, 47 Cal. 526; Branger v. Chevalier, 9 Cal. 351; Hayne’s New Trial and Appeal, sec. 160.)

[593]■ Tbe application to tbe court below baying been made more tban six months from tbe date of tbe certificate of settlement, that court was without power to allow an amendment or correction of tbe statement, and its order denying tbe application cannot be disturbed.

The motion is denied.

Garoutte, J., Harrison, J., Temple, J., and Beatty, C. J., concurred.