Moore v. Kendall

BRITT, C. Judgment was entered against defendant in this action on October 27, 1894; his attorney gave notice of intention to move for new trial, and in January, 1895, served his proposed statement in support thereof on the attorney for plaintiff. On March 4, 1895, the latter served certain proposed amendments to such statement on the attorney for defendant. Thereupon defendant’s attorney gave due notice that he would present the proposed statement and amendments to the judge who tried the cause for settlement on March 14, 1895. The matter of settling the statement was postponed from time to time •—at least some of the delay being at the instance of defendant— until some time in October, 1895, when it was found that the proposed statement had been lost. Defendant’s attorney then obtained a continuance until December 18, 1895 (afterward extended by stipulation until January 12, 1896), to enable him to present a redraft of the proposed statement, to be made from the stenographic notes of the trial. He served a paper of that nature, but its correctness as -a rescript of the first draft was disputed by plaintiff’s attorney. On February 10, 1896, the attorney for plaintiff gave notice of motion to dismiss the defendant’s proceedings for new trial on the ground, among ■others, that they had not been prosecuted with reasonable diligence. The court granted the motion to dismiss, and defendant appealed.

If wé admit, as appellant contends, that the evidence at the ' hearing showed that the original proposed statement was lost while in the hands of plaintiff’s attorney, and that the subsequent embarrassments resulted mainly from such loss, if was yet the appellant on whom rested the duty, as the moving party, to present the proposed statement and amendments, within ten days after the receipt of the latter, to the judge for settlement, or to deliver them to the clerk of the court for the judge. (Code Civ. Proc., sec. 659, subd. 3.) The defendant did neither the one nor the other; and although it may be inferred from the sub[147]sequent conduct of plaintiff’s attorney that such omission was not objected to by him, and that by consent to proceedings for supplying the lost statement he waived objections he might previously have made, still the defendant is not blameless for the loss of the paper. Had he taken either course allowed by the statute probably it would not have been lost; according to his own showing he took no note of the safekeeping of the document for the space of six months or more after it became his duty to deliver it either to the judge ór the clerk. Also, there is no explanation of his delay to obtain or to attempt to obtain a settlement of the substituted statement during the period from January 12th to February 10th, 1896. The circumstances were such as should have incited to dispatch. We see no abuse of discretion in the order appealed from, and it should be affirmed.