73 P. 604 | Cal. | 1903
Lead Opinion
Motion to dismiss appeal. For the reasons given in the opinion heretofore delivered on this motion (post p. 700) the motion to dismiss the appeal from the order distributing the estate of the deceased must be denied. It appears that a certain stipulation of July 22, 1901, printed in the transcript, which is copied in that opinion, was not signed by the attorneys for the appellants, the Moosers; but the attorneys of those appellants did sign a stipulation of that date, which is attached to the transcript in a type-written form, and is as follows: "It is hereby stipulated that the foregoing printed pages contain a full, true, and correct copy of the bill of exceptions, the petition for distribution of estate, the order distributing and assigning the residue of the estate, being the order appealed from, the notice of appeal, and of all papers used on the above petition for distribution of estate, in the court below, and that said printed pages are a full, true, and correct transcript of said papers. It is further certified that an undertaking on appeal in due form had been properly filed." The difference in the two stipulations does not affect the conclusion reached in the opinion.
The motion to dismiss the appeal is denied.
Van Dyke, J., Angellotti, J., Lorigan, J., and Henshaw, J., concurred.
Concurrence Opinion
I concur in the order denying the motion to dismiss, but my concurrence is based solely upon the grounds discussed in my dissenting opinion in Bell v. Staacke,
For these reasons I am not prepared to admit that the superior court can conclude the jurisdiction of this court by a statement in the bill of exceptions that the clerk's entry of a judgment or order was made at a particular date.
Neither am I willing to admit the correctness of the statement in the opinion of the court that "the code does not seem to provide anywhere for an authentic record of the date of the entry of the judgment or order appealed from." As to judgments, at least, such provision is clearly made in section
To recapitulate: The statement in the bill of exceptions relates only to what was done by the court on the 20th of May. It does not pretend to state when the clerk entered the judgment, the only fact with which, under the doctrine of the court, we are at all concerned. But if the statement could be held to refer to the entry of the clerk, it is a statement which we should be obliged to disregard as an attempt by the superior court to forestall this court in the decision of a question affecting our jurisdiction, which it is not only our right, but our duty, to decide for ourselves.
There is a fact mentioned incidentally in the court's opinion which lends some support to its conclusion, though it is not made the ground of decision. It seems that this so-called bill of exceptions was not settled by order of the court, but by stipulation of the parties, and the statement that the order was entered on the 20th of May may therefore be treated as a fact stipulated, notwithstanding its improper insertion in the bill of exceptions, and as a stipulated fact it might, in the interests of justice, be liberally construed as referring to the act of the clerk, and not to the act of the court, as apparently it does. I should have been willing to acquiesce in this construction of a stipulation, and to have concurred in the view — if the court had so held — that the appellant having acted upon the stipulation, the respondent must be held to be estopped to contradict it. But I do not understand that the decision is placed upon the ground of estoppel, and in the case of Bell v.Staacke,
This case furnishes another illustration of the mischiefs resulting from a false construction of the code provision as to the time for taking appeals, a construction that it would be wise to frankly abandon instead of consuming valuable *699 time in the effort to discover reasons for not applying it in particular cases.
Concurrence Opinion
I concur, generally, in the opinion of Mr. Justice McFarland, but I wish to qualify it slightly. From the language of the opinion given upon the former hearing, in connection with that this day rendered, it might be inferred that it was proper for a bill of exceptions on appeal from a judgment or order to show the date of the entry of the judgment, and that this statement could be used as evidence of the date upon a motion to dismiss the appeal. I do not think the opinions intend to sanction this proposition, and if they did I am not prepared to agree to it. The bill in question here was not settled by the judge. He was absent, and the parties stipulated that it was correct and should be used accordingly, as if it had been regularly settled. It was therefore something more than a bill of exceptions. It was a stipulation of the parties to the effect that the entry of judgment took place on a certain day. It is too late for a party to dispute the truth of this stipulation after the appeal has been taken, and upon a motion to dismiss the appeal on the ground that it was premature. The stipulation was made after the appeal was taken, and within the time when a new appeal could have been taken, if the appellant had been aware of the claim that the judgment had not been entered. It is to be presumed that the appellant relied on the stipulation, and the respondent, having remained silent until — conceding his claim as to the date of entry — the time for appeal had passed, so that, if the respondent were correct, the appellant would have lost his right, an estoppel arises against the respondent, and prevents him from now disputing the date as stated in the bill.
But I am further of the opinion that the motion to dismiss the appeal should be denied, for the reasons given in the dissenting opinion of the chief justice in Bell v. Staacke,
The following is the opinion above referred to in the opinion of Mr. Justice McFarland, rendered in Bank on the 22d of September, 1902: —
Addendum
Motion of respondents to dismiss an appeal from an order distributing the estate of the decedent. The ground of the motion is, that the notice of appeal was filed and served before the entry of the order, and was therefore premature. The notice of appeal is dated June 6, 1901, and it was given on the theory that the order appealed from was entered May 20, 1901, the day on which it was signed and filed. Respondents contend that it was not entered until June 14, 1901, which was of course a few days subsequent to the notice of appeal.
The transcript on appeal contains a bill of exceptions setting forth quite fully the proceedings had on the petition for distribution, and, among other things, it is stated therein positively that "afterwards, to-wit, on the twentieth day of May, one thousand nine hundred and one, the court made, entered, and filed an order distributing and assigning the residue of the estate of the said Henry Pichoir, which order was in words and figures following." The judge of the court below being absent from the state at the time, respondents and appellants stipulated in writing that "the bill of exceptions shall be deemed and taken for all purposes to be settled, allowed, and approved as of this date, with like force and effect as if settled, approved, and certified by said judge." Counsel for respondents also, on July 22, 1901, signed the following stipulation to the transcript: "It is hereby expressly stipulated and agreed that the foregoing printed pages contain full, true, and correct copies of the bill of exceptions; the order distributing and assigning the residue of the estate, the order appealed from; the notice of appeal; and of all papers used on the hearing in the court below; that the same constitute a full, true, and correct transcript on appeal in this case; that the said transcript shall be and constitute the record on appeal to the supreme court of the state of California from the said order, and that all proceedings were duly taken andall notices were given in due time, and a good and sufficient undertaking on appeal was *701 given as required by law." The transcript was filed here on August 5, 1901, and it constitutes the record in this court.
A former motion to dismiss the appeal was made on the same ground as that upon which the present motion is based, and on the former motion respondents offered a certificate of the clerk of the court below, and an affidavit of one of his deputies, to the effect that the order appealed from was not entered before June 14, 1901. Appellant objected to such evidence as not admissible to contradict the transcript, and the objection was sustained, and the motion denied "without prejudice." Afterwards respondents moved the court below to amend the bill of exceptions so as to make the same show that the order appealed from was not entered at length until June 14, 1901; but the court refused to make the amendment.
The point relied on by respondents seems to have been definitely decided against their contention by the decision of this court in Harnish v. Bramer,
We think that the statement in the transcript, that on May 20, 1901, the court "made, entered, and filed" the order in question, means that it was entered in the manner provided by law; it must have been so understood by this court when the former motion to dismiss was denied.
Under the above views we need not consider appellant's contention that respondents should be held to be estopped by their conduct from seeking to dismiss the appeal after the time for taking another appeal had passed.
*703The motion to dismiss the appeal is denied.