132 P. 445 | Cal. | 1913
This is an appeal by plaintiff from an order denying his motion for relief under section
The bill of exceptions on appeal from the order denying relief shows that the action was one for the specific performance *374 of an alleged contract for the sale of real estate. The action was tried May 31, 1910. Decision in writing (findings of fact and conclusions of law) was filed, and judgment that plaintiff take nothing was given and entered early in July, 1910, and plaintiff was given notice of the entry of judgment, together with a copy of the findings, as early as July 15, 1910. Within ten days after such notice, plaintiff served and filed his notice of intention to move for a new trial. Plaintiff was desirous that certain of the findings of fact be amended on motion, and various stipulations were made extending the time of plaintiff to prepare and serve his bill of exceptions in order that he might defer such serving and filing until such motion could be made and determined. Finally, in November, 1910, stipulation was made by the attorneys for both parties, "that the motion to amend or change the findings of fact and conclusions of law will be heard on the 10th day of November, 1910, and the time to appeal or make motion for new trial will immediately commence on the day on which the order is made on such motion; that this stipulation hereby sets aside and abrogates any and all stipulations heretofore made in regard thereto." No stipulation or order purporting to extend plaintiff's time was subsequently made. The motion to amend was heard, and on December 16, 1910, the court made and filed its order, which was signed by the judge, purporting to strike out a certain finding of fact as to the value of the land at the time of the signing of the alleged contract of sale, and the increase of value thereafter, and to substitute in lieu thereof a new one in regard to the same matters, but showing a lesser value and a smaller increase in value, and adjudging that in all other respects the findings stand as they were originally made and filed. A copy of this order was sent to and received by certain of the attorneys of record for plaintiff on December 17, 1910. On one side it is claimed and on the other it is denied that there were subsequently certain conversations between attorneys for the respective parties as to the necessity of preparing and having filed new findings and a new judgment, in which one of the attorneys for defendant stated that he proposed to so do. On this proposition, however, there is a sufficient conflict in the evidence to make the case solely one for the trial court. On March 2, 1911, defendant's *375 attorneys served on the attorneys for plaintiff a formal written notice to the effect that findings of fact, conclusions of law, and judgment for defendant were duly and regularly signed and made on July 6, 1910, and filed and entered by the clerk on July 7, 1910; that the court, in pursuance of the motion of plaintiff, on December 16, 1910, made and signed an amendment to the findings of fact, and that such amendment was filed with the clerk, and by him duly entered on February 8, 1911; and that the conclusions of law and judgment in said action "were and are unchanged as when filed on said 7th day of July, 1910." No attempt was made by plaintiff's counsel to serve any proposed bill of exceptions until March 31, 1911. The only excuse for not serving the same sooner is that the particular attorney of plaintiff having the matter in charge was uncertain whether, in view of the purported amendment of one of the findings, new findings and judgment would be prepared and filed. He admits in his affidavit that he was informed on March 2, 1911, by Mr. Noyes, an attorney for defendant, at the time of the service of the notice, that defendant would not file new findings and judgment. Seasonable objection was made by defendant to the consideration of such proposed bill.
Except in so far as the time to serve the proposed bill of exceptions on motion for a new trial was extended by reason of the stipulations of the parties, plaintiff's time expired with the expiration of ten days from the date of the service of his notice of intention to move for a new trial. (Code Civ. Proc., sec. 659, subd. 2, and sec. 650.) The mere pendency of the motion to amend, subsequently made by plaintiff, could not extend the time. And in so far as plaintiff's motion was one to amend or change any finding of fact, it was entirely unauthorized by any provision of law, and could not legally be granted. Sections
We will assume, going as far as we can in favor of plaintiff, that the effect of the stipulation of November, 1910, which in terms abrogated all previous stipulations, was to so extend plaintiff's time to serve his proposed bill of exceptions that the same commenced to run "on the day on which the order is made on such motion," which was December 16, 1910, or at least as early as the day on which defendant was notified of the order, — namely, December 17, 1910. This gave him not longer than ten days from the date last mentioned, and as no stipulation or order for further time was given, his time expired at the expiration of said ten days. The trial court was therefore compelled to hold that the proposed bill served on March 27, 1911, was not served in time.
We are not prepared to hold that there would have been any abuse of discretion on the part of the trial judge in denying the motion for relief, even if the notice of March 2, 1911, had not been given. It may well be argued that there was nothing shown to reasonably warrant any reliance on the part of plaintiff's attorneys upon the idea that new findings and judgment could legally be filed or given or that the time to *377 serve the proposed bill of exceptions on the motion for new trial of which notice was given in July, 1910, was extended beyond ten days from December 17, 1910.
However this may be, in view of the notice of March 2, 1911, twenty-nine days prior to the attempted service of any bill, and the admitted statement of Mr. Noyes at the time of serving such notice, we are clear there is no foundation for any claim that the court was guilty of any abuse of discretion in holding that plaintiff was not entitled to be relieved from his default. Even if it was thought that the attempted change in the finding of fact was effectual, it was clear from the terms of the order signed by the judge and filed, that the change was effected by the making and filing of the order, and that it was not necessary to have a new set of findings, including the amendment, signed and filed, or a new judgment given. The notice given to the attorney for plaintiff on March 2, 1911, and the statement of defendant's attorney made to plaintiff's attorney at the time of the service of such notice, clearly conveyed to plaintiff's attorney knowledge that defendant's attorneys did not intend to prepare or present any additional findings or judgment. Plaintiff's attorney had no information that the judge desired to make or file any additional findings or judgment, and no reason is apparent why he might conceive that the judge would so desire. No reason at all is apparent why plaintiff's attorney might fairly assume that the time to present plaintiff's proposed bill of exceptions if it had not already long since expired, would not certainly expire with the expiration of ten days from March 2, 1911, in the absence of further stipulation or an order of extension.
It is well settled that the trial court is invested with a large discretion in the matter of such applications as this, and that its action will not be disturbed on appeal unless it is clearly made to appear that such discretion has been abused. This is true whether the application be granted or refused. (Moore v.Thompson,
The order appealed from is affirmed.
Shaw, J., and Sloss, J., concurred.