61 P. 955 | Cal. | 1900
The plaintiffs are the surviving widow and infant child of Alexander D. Cameron, deceased, and recovered judgment herein against the defendant in the sum of ten thousand dollars damages for the death of the deceased, resulting from the negligence of the defendant. From *280 this judgment and an order denying a new trial the defendant has appealed, bringing the case here upon the judgment-roll and a bill of exceptions. The respondents insist that the appellant is not entitled to have the bill of exceptions considered, for the reason that it was not prepared or served upon them within the time provided by the statute, and that the judge had no jurisdiction to settle the same.
The verdict of the jury was rendered September 3, 1897, and judgment thereon was entered upon the next day. September 10th the defendant served upon the plaintiffs, and filed with the clerk, its notice of intention to move for a new trial. The defendant did not serve upon the plaintiffs its proposed bill of exceptions until October 29th, and the plaintiffs then objected thereto upon the ground that the same was served too late. November 8th the plaintiffs, reserving an objection to the proposed bill of exceptions that it was served too late, proposed amendments thereto, and when the same was presented to the judge for settlement again objected to its settlement upon the same ground. It was shown, at that time, and appears from the bill of exceptions itself, that on September 4th the court extended the defendant's time thirty days within which to prepare and serve its proposed bill of exceptions and that on October 4th the court extended the time for preparing and serving said bill for thirty days further. Each of these extensions was made upon the ex parte application of the defendant, and without the consent of the plaintiffs, and it also appears that the plaintiffs did not at any time stipulate or consent to any extension of time for the preparation and serving of any bill of exceptions. The judge overruled and disallowed the objection of the plaintiffs, and settled and signed the bill, and the same was then filed.
Section
The suggestion of the appellant that section
Nor can we accede to the proposition of the appellant that, as the judge has settled the statement, it must be considered here that there were sufficient reasons presented to him to excuse the defendant's failure to serve the draft within the time allowed therefor, and that such determination is conclusive in this court. It is a sufficient answer to this contention to say that it does not appear that any attempt was made on the part of the defendant before the superior court to excuse his delay, or that any such determination was made by the judge. The record itself fails to show any facts from which the appellant could claim relief from his default, or that he made any application to the court to obtain such relief. In Stonesifer v. Kilburn,
It must be held, therefore, that the judge was without jurisdiction to settle the bill of exceptions when it was presented to him, and it follows that it cannot be considered upon this *283
appeal. (Connor v. Southern Cal. etc. Co.,
The judgment and order denying a new trial are affirmed.
Van Dyke, J., and Garoutte, J., concurred.
Hearing in Bank denied.