20 P.2d 687 | Cal. | 1933
Plaintiff instituted this action to cancel a deed to certain real property and to quiet his title thereto. The complaint alleges that defendant procured the deed from plaintiff by certain threats made at a time when plaintiff was in a weakened mental condition and while defendant was acting as the fiduciary agent of the plaintiff. The cause was tried by the court sitting without a jury. From the judgment entered for defendant the plaintiff prosecuted an appeal. However, the proposed bill of exceptions to be used on such appeal was not prepared or served within the time limited by law. Appellant's default was due to his reliance upon certain orders of the trial court purporting *565
to extend the time therefor beyond the period fixed by sections 650 and
[2] Upon the discovery of his error, the appellant moved under section 473 of the Code of Civil Procedure to be relieved of his default. The court below denied the motion and plaintiff appealed therefrom. It is this latter appeal to which our attention is now directed, the disposition of which will, of course, have a material bearing upon the ultimate determination of the appeal from the judgment.
Any discussion as to the propriety of the trial court's action refusing to relieve the appellant from default in the preparation of his record must necessarily be prefaced by a reference to the settled principle of law that motions for relief from default under the remedial provisions of section 473, supra, are addressed to the sound discretion of the trial court, the exercise of which, in the absence of a clear showing of abuse, is not to be interfered with by an appellate tribunal. (Waybright
v. Anderson,
[3] While it is true, as urged by the respondent herein, that there appeared to be additional reasons suggesting the granting of relief to the appellants in the cited case, we were actuated in our reversal of the order in that case principally, if not solely, because of the appellants' reliance in good faith upon the void orders of the trial court purporting to extend the time for the preparation and service of the proposed bill of exceptions beyond the statutory period. The present case falls squarely within that rule and, in our opinion, warrants relief to the appellant. This will insure a hearing on the merits, which it is always the policy of the law to favor. (Waybright v.Anderson, supra; O'Brien v. Leach,
In announcing our conclusion on this phase of the case we experience no difficulty with Ingrim v. Epperson,
[4] We are next confronted with an appeal from an order denying plaintiff's motion, made under section
Preliminarily, respondent requests that we reconsider the question of the appealability of the order refusing to vacate the judgment and reopen the case, which question was heretofore decided adversely to her. (Lewith v. Rehmke,
For the foregoing reasons, the order denying plaintiff's motion for relief from default in the preparation and service of his proposed bill of exceptions to be used on the appeal from the judgment is reversed, with directions to the court below to settle the same in accordance with law, all other matters and questions to abide the consideration and disposition of the appeal from the judgment.
Preston, J., Langdon, J., Curtis, J., Shenk, J., Seawell, J., and Thompson, J., concurred.