Leeper v. Ginsberg

THE COURT. This is an appeal from an order of the trial court of Sacramento County terminating appellants’ proceedings to settle a bill of exceptions, on account of a lack of diligence. The bill of exceptions was settled and directed to be engrossed, pursuant to the provisions of section 650 of the Code of Civil Procedure, by a judge who resided outside of the county. The engrossed bill was left with the clerk of said court to be forwarded to the judge for his signature and a copy of that document was served on plaintiff’s attorney the same day. The clerk failed to forward the engrossed bill to the trial judge, or to call his attention to the fact that it had been left in the clerk’s office for him. After more than six months had elapsed from the time of the service of the engrossed bill, the plaintiff moved the trial court to terminate the proceedings on the ground of a lack of diligence. That motion was granted.

The appellants contend that the leaving of the engrossed bill of exceptions with the clerk of the court for the trial judge, even though he resided outside of the county, fully complied with the fifth paragraph of section 650 of the Code of Civil Procedure, and affirmatively disproves the charge of lack of diligence in presenting the engrossed bill to the judge for his signature, and that the court therefore abused its discretion in terminating the proceedings.

The late Honorable J. G. Bruton, who resided at Woodland, presided in Sacramento County at the trial of a suit between the parties herein. Judgment was rendered against the defendants. Notice of appeal was given, and proceedings for the settlement of a bill of exceptions were instituted. Defendants filed a proposed bill of exceptions. To that proposed bill the plaintiff filed his proposed amendments. October 30, 1940, Judge Bruton ordered the bill settled and engrossed. The plaintiff stipulated to an extension of thirty days in which to present the engrossed bill. December 7, 1940, defendants left with the County Clerk of Sacramento County the engrossed bill of exceptions to be sent to Judge Bruton at Woodland, or to be delivered to him immediately upon his return to Sacramento, pursuant to section 650 of the Code of [593]Civil- Procedure, and also served upon plaintiff a copy of the proposed bill, on that last mentioned date. The clerk failed to send or deliver the engrossed bill to Judge Bruton. No further action was taken in said matter until July 10, 1941, when the plaintiff served and filed a notice of motion to terminate the proceedings for settlement of the bill of exceptions, on the ground of a lack of diligence. The motion was heard by Judge Bruton on July 21, 1941, and granted “on the grounds that the Bill of Exceptions was by counsel presented to the Clerk and never presented by counsel to the Judge in due time as prescribed by law, and upon the further grounds that appellant failed to prosecute his appeal.”