64 P. 106 | Cal. | 1901
In this case the superior court made an order for the payment of an attorney’s fee out of the estate of the plaintiff. After payment by the guardian, the appellant, Townsend, made a motion to vacate the order allowing the attorney’s fee, and requiring its repayment by the attorney, with interest. In due time the superior court made an order which expressly vacated the previous order allowing the attorney’s fee, but was not explicit upon the point of repayment. The appellant, acting upon the theory that the effect of the second order was to deny that part of her motion relating to repayment, took this appeal from such denial. But apprehending that it might be held that there had been
But, although there has been a failure on the part of appellant to comply with the rule and orders of the court as to the time of filing her transcript, we are not inclined, in view of all the circumstances of the case, to deny her a hearing on the merits of her appeal. We are satisfied that her counsel has acted in good faith upon his mistaken construction of the order extending time. The transcript was actually served on respondent within ten days after the time allowed by the order, strictly construed. No material delay will be occasioned in the hearing of the appeal, and respondent has been put to no costs or other inconvenience; and, since the enforcement of the rule is within our discretion, we shall deny the motion. It is so ordered.
We concur: Temple, J.; Henshaw, J.