Citizens National Trust & Savings Bank of Los Angeles v. Meserve

139 Cal. App. 89 | Cal. Ct. App. | 1934

STEPHENS, P. J.

On petition to have bill of exceptions settled in accordance with facts.

This opinion and ruling covers two petitions to change the bill of exceptions under section 652 of the Code of Civil Procedure.

The above-entitled case is on appeal to this court and defendants-appellants Marguerite Maloney Mayo and G. C. De Garmo substituted for Julia B. Burns by separate petitions request this court to proceed under section 652 of the Code of Civil Procedure, and change the bill of exceptions so as to show that the findings of fact and conclusions of law were not served on defendants according to the requirements of section 634 of the Code of Civil Procedure, and in fact were never served on defendants at all. Sa,id defendants have regularly requested the trial judge to make such change, but he has refused so to do.

The petitions are denied for the reason that section 634 of the Code of Civil Procedure, requiring the service of findings of fact and conclusions of law, is directory (Hammond Lumber Co. v. Henry, 87 Cal. App. 231 [261 Pac. 1027]; Manfre v. Sharp, 210 Cal. 479 [292 Pac. 465]; Lorraine v. McComb, 220 Cal. 753 [32 Pac. (2d) 960]).

Desmond, J., and Archbald, J., pro tern., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on July 2, 1934, and an application by petitioner to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 2, 1934.

Shenk, J., dissented.