216 P. 970 | Cal. Ct. App. | 1923
This is an appeal from an order of the trial court denying defendant's motion to be relieved from the effect of objections taken by plaintiff to proposed bill of exceptions because of defendant's failure to file said bill in due time.
The motion of defendant was made under section
No attempt was made to secure further time and the bill of exceptions was not served and filed until December 20, 1921, at which time plaintiff objected to its settlement and his objection was sustained. Then followed the motion of the *480 defendant to be relieved of the effect of its default, and from the order denying such motion the defendant has appealed. Before the filing of said bill of exceptions, to wit, on December 8, 1921, the law firm of Sloss, Ackerman and Bradley was substituted in the place and stead of the former attorneys for the defendant. Said substitution was dated December 8, 1921, and copy of same was served upon the attorney for the plaintiff and filed on December 12, 1921, and said substituted attorneys prepared and filed the proposed bill of exceptions, settlement of which was denied.
In support of its claim that the delay in filing the proposed bill of exceptions was due to mistake, inadvertence, surprise, and excusable neglect warranting relief under section
In rebuttal there appears in the record the affidavit of attorney for plaintiff which recites many of the facts herein set out and states further that on or about December 30, 1921, affiant discussed with the attorney who had represented defendant at the trial of this action the matter of the stipulations *481 for extension of time; that at that time said attorney for defendant showed to affiant his office diary and affiant saw, under date of December 16, 1921, the memorandum, "Horne vs. Standard, bill of exceptions due," and on the same line another memorandum "substitution, drop"; that said attorney for defendant thereupon remarked to affiant, "my memorandum seems to bear you out."
[1] This case falls within the well-settled rule announced inIngrim v. Epperson,
It seems idle to review herein the numerous authorities in this state on so well-settled a proposition as that involved upon this appeal, and we shall only repeat, as an expression of our own view in the present case, the statement of our supreme court in the case of Alferitz v. Cahen,
The order appealed from is affirmed.
*482Nourse, J., and Sturtevant, J., concurred.