Freeman v. Brown, 90 P. 970

Freeman v. Brown

90 P. 970 | Cal. Ct. App. | 1907

Appeal from an order denying the defendant's application for leave to amend proposed statement on motion for a new trial.

Upon the trial of the action in the court below judgment was entered against defendant, and in due time he served his notice of intention to move for a new trial and served and filed his proposed statement on such motion, which statement omitted to specify the particulars wherein the evidence was insufficient to justify the findings, and wherein the decision and judgment was against law, and the errors in law occurring at the trial and excepted to by the defendant. When the settlement of the statement came on for hearing defendant asked leave to amend the proposed statement by filing a supplemental statement setting forth the omissions hereinbefore referred to. This application was supported by an affidavit of one of the attorneys, "that by reason of an oversight and through press of business affiant omitted to specify in the proposed statement the particulars wherein the evidence was insufficient to justify the findings, wherein the decision and judgment was against law, and the errors *518 in law occurring at the trial and excepted to by defendant; that said errors and omissions occurred entirely through an oversight and through press of business which caused affiant to overlook said error and omission." The court denied this leave to amend and file supplemental statement, from which order defendant appeals.

It is settled that the order of a court made in the exercise of its discretionary power denying relief of this character is reviewable upon appeal (Murphy v. Stelling, 138 Cal. 641, [72 P. 176]), and in this case such appeal was taken in time. (Pollitz v. Wickersham, 150 Cal. 138, [88 P. 911].) The relief sought by defendant was from the result of mistake, inadvertence and excusable neglect under section 473, Code of Civil Procedure. The court has the power so to relieve, but the granting of such relief rests in the sound discretion of the court. "Whether or not the circumstances of a particular case are such that the mistake or inadvertence should be excused is a question the determination of which must, of necessity, be left largely to the court to which application is made; and it is well settled that this court will not interfere with the exercise of the discretion of that tribunal, except in a case where a clear abuse of discretion is apparent." (Vinson v. LosAngeles Pac. R. Co., 147 Cal. 479, [82 P. 54].) In this last case, where the affidavit showed that the press of professional duties occasioned the neglect, it was held not an abuse of discretion to grant relief. In this case, however, press of professional duties is not assigned, but press of business, which may comprehend matters foreign to the duties of an attorney, is urged. The whole matter, however, was for the trial court, and we cannot say from the meager affidavit presented and relied upon that the court abused its discretion in denying the relief sought.

The order denying leave to file supplemental statement is affirmed.

Shaw, J., and Taggart, J., concurred. *519