101 Cal. 651 | Cal. | 1894
This is an original application to this
court for a writ of mandate requiring the respondent to settle a bill of exceptions.
Petitioners were defendants in an action tried before respondent and a jury in said superior court, wherein one J. F. Sharp was plaintiff. A verdict was rendered against petitioners, and a judgment was entered thereon.
No written notice of the presentation of the proposed bill and amendments was served by the moving party. An inquiry was made by counsel for petitioners of Sharp’s attorney at the time the amendments were served, whether they could settle the same some day that week, to which the reply was made by Sharp’s attorney that “he didn’t see how they could.”
At the time fixed by the court the attorneys of both parties were present, and Sharp’s attorney then presented written objections to settling the bill upon several grounds therein stated, but which, in fact, covered but two points, viz; 1. That the proposed bill of exceptions was not prepared and served in time; and 2. That the five days’ notice in writing required by the code, of the presentation to the judge for settlement, had not been given, and upon the latter ground the judge made a written ruling or order sustaining the last objection, and refused to settle the bill. The attorney for the moving party then requested the judge to shorten the time of written notice to three days, so that the settle
It is clear that petitioners, within the time required, took steps, though irregularly, to have their bill of exceptions settled. Their fault was not delay, or an utter neglect to do any thing towards securing the settlement, but in not taking the proper step. The written notice provided for in section 650 of the Code of Civil Procedure is for the benefit of the adverse party, and may. be waived by him. Ho one would assert that if he appeared, and without objection participated in the settlement of the bill, that he could be permitted afterward to say that it was not properly settled, because written notice was not given; and, therefore, if he consents to a time designated by the court or judge for the settlement he should not be permitted, when that time arrives, to say that the bill should not be settled, because a written notice had not" been served. When the judge announced that he would proceed to settle the bill on the 12th, at an hour and place named, and requested counsel for both parties to attend, counsel for Sharp said he would be “ on hand.” It is true that, in the agreed statement of facts upon which the case is submitted to this court, it is said “ that the attorneys for said Sharp did not appear before the said judge pursuant to said, or any, notice, but appeared specially to object to said settlement.
The time at which the want of notice should have been urged was when the court fixed the time for the
Counsel for respondent cites Wills v. Rhen Kong, 70 Cal. 548, to the proposition that “ the judge having once refused to settle the statement, the matter was ended so far as that officer was empowered to settle it.” What was there said was upon facts which justified it. It was said of a statement presented long after the time for the service of a statement had passed, and after the court had refused to settle a prior statement, no complaint as to the refusal to settle the first statement appearing in the case.
It is further stated that mandamus is not the proper remedy, as the remedy is by appeal, citing Stonesifer v. Armstrong, 86 Cal. 594, and Stonesifer v. Kilburn, 94 Cal. 33. In those cases the bill of exceptions was confessedly not prepared in time, and the moving party applied to the court below to be relieved upon the ground of mistake and excusable neglect; and, as that question was one requiring the exercise of judicial discretion, it is obvious that mandamus would not lie requiring the court to relieve against the mistake or neglect, and that an appeal was the proper remedy. Th¿ circumstances requiring the one remedy rather
A writ of mandate should be issued as prayed for.
Vancliee, 0., and Searls, C., concurred.
This cause having been regularly heard and fully considered, it is ordered that a peremptory writ of mandate do issue against the respondent, commanding him to proceed and settle and certify the bill of exceptions as prayed for in the petition herein.
Harrison, J., Garoutte, J., Paterson, J.