88 P. 985 | Cal. | 1907
This is an appeal from a judgment in favor of plaintiff and from an order denying a motion for a new trial in an action brought and tried in the superior court of San Mateo County upon a policy of insurance against loss by fire. The only matters discussed in appellant's brief are as to the insufficiency of the evidence to justify the verdict, and instructions given to the jury. It was attempted to present the questions so discussed by bill of exceptions settled for use on the motion for a new trial. It is claimed that appellant's proposed bill of exceptions on motion for a new trial was not served within the time provided by law, and, therefore, could not be considered on the motion for new trial, and cannot be considered on the appeal from the order denying such motion, or on the appeal from the judgment. This objection was never waived by plaintiff. Upon this ground plaintiff objected to the hearing of the motion for a new trial in the lower court, and moved to dismiss all proceedings thereunder, but the court refused to dismiss on this ground, heard the motion for a new trial, and denied it. If there was no bill of exceptions which could be considered on the motion for a new trial, the order denying the new trial must be affirmed, for otherwise no error is shown in the action of the lower court. The same is true as to the judgment appealed from. *338
We can see no good answer to the claim that appellant's proposed bill of exceptions was not served in time. Concededly it was not served in time unless an order attempted to be made granting appellant an extension of time within which to serve it was valid. This order was made September 7, 1904, by the judge of the superior court of San Mateo County. By reason of the fact that said judge was related to an attorney for appellant by affinity within the third degree, he was, by express provision of statute, prohibited from sitting or acting as judge in the case, and for this reason a judge of the superior court of Santa Clara County had presided at the trial of said action.
The language of our statute upon the subject (Code Civ. Proc., sec.
By no reasonable construction of the language used can the making of such an order be held to fall within any of the enumerated exceptions. It is not an order relative to the "arrangement of the calendar" or a "regulation of the order of business," and manifestly no other exception stated could possibly apply. The case before us is, in this respect, precisely the same as that of Frevert v. Swift,
It is suggested that as section
The judge of the superior court of San Mateo County was, therefore, without power to make the order extending time. It is overwhelmingly settled that under statutes like our section
The order extending time within which to serve the proposed bill of exceptions was absolutely void. The proposed bill of exceptions was, therefore, not served in time. In the absence of an order relieving appellant under section
It appears from the bill of exceptions settled on the hearing of the motion to dismiss appellant's proceedings for a new trial, that, at the time the motion was argued and submitted, appellant did make a conditional motion to be relieved from the effect of the failure to serve its proposed statement in time, "if there was such failure," upon the ground of mistake, inadvertence, and excusable neglect, and supported such motion by affidavit, which affidavit is not contained in the record. It affirmatively appears from the bill that the trial court never ruled on this conditional motion for relief, and denied the motion for dismissal solely on the ground that there was no default, and appellant acquiesced in this action of the court, not even excepting to the failure to rule upon the motion for relief. It is now suggested that the case may be remanded with directions to the court below to pass upon the motion for relief. We are satisfied that it must be held that the appellant, by thus acquiescing in the action of the trial court and voluntarily submitting its motion for a new trial upon such legal record as then existed, waived and abandoned its motion for relief under section
The judgment and order are affirmed.
*341Shaw, J., and Sloss, J., concurred.