119 P. 202 | Cal. Ct. App. | 1911
This is an appeal from an order of court denying defendant's motion for relief under the provisions of section
On November 29, 1909, defendant's motion for a new trial and to have vacated and set aside a judgment theretofore rendered herein was denied. More than sixty days thereafter, and in the absence of any stipulation or order extending the time, he presented to the court what he termed a "Record on Appeal," consisting of copies of certain papers which he deemed necessary to constitute such record, together with a copy of the reporter's transcript of the testimony used at the hearing of the motion for a new trial, and, upon notice to plaintiff, applied to the court to have the same authenticated. Upon objection being made by plaintiff, the court refused to authenticate the papers upon the grounds that the same were not presented within the time required by law. Thereupon defendant applied to the court to be relieved from his default upon the grounds that the same was due to mistake, inadvertence and excusable neglect. His application was denied by the court, and from this order he has appealed.
In his affidavit in support of the motion, defendant's attorney states that he had been instructed by his client to take an appeal from the order denying his motion for a new trial; that affiant had never before undertaken to prosecute such an appeal to the supreme court and was unaware that the matters in support of such motion should be authenticated in a bill of exceptions, as provided in section 650 of the Code of Civil Procedure; that about ten days after the date of the order of court denying defendant's motion for a new trial, affiant was informed that under the decisions of the supreme court of this state the papers used upon such appeal should be embodied *225 in a bill of exceptions and the same authenticated by the trial judge, and thereupon he made an investigation of such decisions and came to the conclusion that the supreme court based their opinions upon the ground that all of the records used in the court below had not been transferred to them, for which reason alone he concluded the court so decided said cases; that it would have been impossible to prepare the record within the time required by law, and that affiant did obtain an extension of thirty days' time within which to file the record in the supreme court of California, he still being of the opinion at the time that no bill of exceptions was necessary.
The making of an order granting or denying relief when applied for by one who seeks to bring himself within the provisions of section
The order appealed from is affirmed.
Allen, P. J., and James, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 5, 1911.