27 Cal. 491 | Cal. | 1865
Judgment was rendered in plaintiff’s favor on the 16th of February, 1864, and thereupon the defendant gave notice of his intention to move for a new trial. The statement to be used on the motion was filed on the 5th of March following. On the 4th of June the defendant applied to the Judge of the Court at Chambers for- an order directing the Clerk to enter in his minutes of the proceedings of the Court, as of the day when the judgment was rendered, an order staying proceedings in the cause and granting to the defendant fifteen days in addition to the time allowed by statute, within which to prepare and file a statement on motion for a new trial. This application was founded on the affidavit of the defendant’s
The motion, with the objections thereto, was heard by the Judge at Chambers. Upon the argument, the Judge informed the counsel of the parties that he did not recollect the order referred to in the affidavit of defendant’s attorney, but would find the facts to be as therein alleged. At the same time the defendant moved, upon the statement filed, for a new trial, when the plaintiff objected, upon the ground, among others, that the defendant had waived his right to move for a new trial,
First—That the defendant waived his right to a motion for a new trial by not filing his statement within the time prescribed by section one hundred and ninety-five of the Civil Practice Act.
Second—That there was nothing in the affidavit of the defendant’s attorney which took the case out of the provisions of said section.
Third—That the .Court could not regal’d anything in that affidavit as evidence of the existence of the supposed order therein mentioned.
Fourth—That the Court was not authorized to amend the record after the expiration of the term of the Court without something to amend by.
Fifth—That the Court erred in granting the motion for a new trial.
It is not necessary to consider these objections seriatim. If the statement prepared by the defendant was not filed within some time for which the one hundred and ninety-fifth section of the Practice Act makes provision, then by the terms of that section the right to move for a new trial was waived, and when such right was waived the Court was powerless to rescue the case from the consequences of the defendant’s default.
The order which the defendant’s attorney deposes was made and signed, was not made a part of the record of the proceedings in the case at the term of the Court when the judgment was rendered, and the appellant maintains that the omission cannot be remedied by the Court after the term has elapsed. It is the duty of the Clerk to enter all orders made by the Court in the minutes of its proceedings, and the parties con
Therefore the order vacating and setting aside the judgment and granting a new trial must be and is hereby reversed.
Mr. Justice Sawyer expressed no opinion.