Banta v. Siller

THE COURT. The verdict and judgment were for plaintilf. Defendants appeal from the judgment and from an order denying their motion for a new trial.

The motion for a new trial was made upon a statement of the case; and respbndeñwobjects to the consideration of the statement, on the ground that the proposed statement and amendments thereto were not presented to the judge for settlement, or left with the clerk for the judge, within the time prescribed by the Code of Civil Procedure. The statement was prepared in proper time and amendments duly proposed, and [416]appellants gave notice to respondent that they would present the statement, with the amendments, to the judge for settlement-on the twenty-seventh day of February, 1896, which was within the ten days prescribed by the code. It appears that they were not presented to the judge on that day, but were left with the-clerk for the judge two days afterward. Afterward, on March 16th, the proposed statement and amendments came up- for settlement, and upon objection of respondent the court refused to settle the same. On the same day appellants served notice of a motion to be relieved from the order refusing to settle the statement, on the ground of their inadvertence, excusable neglect, etc.

The court granted the motion, and thereafter, against plaintiff’s objections, settled the statement as it is here presented. There is no doubt that the court had power to do this. As was-held in Stonesifer v. Kilburn, 94 Cal. 33, the settlement of a statement is a “proceeding” within section 473 of the Code of Civil Procedure; and under that section the release of a party from a proceeding taken against him through mistake, inadvertence, etc., is a matter- largely within the discretion of the trial ' court. An order granting such release will not be disturbed here,, unless it clearly appears that the court or judge was guilty of gross abuse of discretion in making it. Indeed, it has been frequently said here that in cases of doubt the court ought to resolve the doubt in favor of the application, so that the full merits of the litigation might be presented. (Buell v. Emerich, 85 Cal. 116; Wolff v. Canadian Pacific Ry. Co., 89 Cal. 332; Grady v. Donahoo, 108 Cal. 211; Harbaugh v. Honey Lake etc. Co., 109 Cal. 70.) In the case at bar the evidence upon the point clearly warranted the court in setting aside its order and settling the statement; and in doing so the court certainly did not abuse its discretion.