Skernswell v. Schonfeld

TRAYNOR, J. This ease raises a problem of procedure upon which the parties have presented a stipulation of facts. In March, 1940, Julius Neustadt brought an action in the superior court against Joseph Skernswell, and on May 26, 1941, that court gave judgment in favor of Neustadt. On [504]May 29th findings of fact, conclusions of law, and the judgment were filed with the county clerk. On July 10th a motion for a new trial was denied, and on July 18th defendant filed notice of appeal. The appeal is now pending in this court. On July 28th the trial judge, at plaintiff’s request, signed an order setting time of hearing the accounting by the referee, an order directing the referee to take possession of real property and to collect all rents and income, and an order directing the referee in partition to sell real property. Copies of the orders were served on defendant’s attorney the same day but the orders were not filed with the clerk of the court until the following day. On August 1st the trial judge, at plaintiff’s request, signed a written order requiring a bond on appeal. This order was filed with the clerk of the court on the same day after a copy had been served on defendant’s attorney. None of the copies served on defendant’s attorney contained any statement indicating that the orders had been filed with the clerk. The parties agree that no written notice of the filing or entry of any of these orders was given defendant before the filing of the bill of exceptions. On September 10th defendant filed notice of appeal from these orders, and on September 19th served and on September 20th filed a proposed bill of exceptions to be used on the appeal. Plaintiff moved to strike the bill of exceptions from the record, and after a hearing the trial court made an order granting the motion. Defendant has petitioned this court for a writ of mandate ordering the trial court to settle and certify the bill of exceptions.

If a trial court improperly refuses to settle a bill of exceptions, mandamus is an appropriate remedy. (See cases cited in 2 Cal. Jur. 567.) A bill of exceptions must be presented within twenty days after written notice of entry of the judgment or order from which the appeal is taken. (Code Civ. Proc., secs. 650, 651, 953d.) Notice of a judgment or order does not constitute notice of entry of the judgment or order. (Leach v. Pierce, 93 Cal. 614, 621 [29 Pac. 235] ; Tobin Grocery Co. v. Spry, 201 Cal. 152 [255 Pac. 791].) Since petitioner received no notice of the entry of the orders before the filing of the proposed bill of exceptions, the latter was presented in time.