228 P. 534 | Cal. | 1924
This is a motion to dismiss the appeal on the ground that the appellant has not filed her transcript upon appeal within the time allowed by law. In support of the motion respondents show by affidavits and by the certificate of the clerk of the trial court that the time has elapsed for the preparation and filing of a transcript under the so-called alternative method, and that no proceedings have been instituted by the appellant therefor, and they show further "that no bill of exceptions to said judgment or to any proceeding at said trial has been settled or filed, and that no proceeding for the settlement of any such bill of exceptions is now pending or has ever been instituted." In response thereto appellant contends that a bill of exceptions for use upon this appeal has in fact been settled and that the time allowed her by law for the filing of a transcript thereafter had not expired at the time this motion was made.
The record before us shows that a paper purporting to be a "bill of exceptions on order denying plaintiff's motion for new trial" was in fact settled and allowed by the trial court herein as a bill of exceptions, and if this does constitute in fact and in legal effect a bill of exceptions which may properly be used upon this appeal from the judgment the appellant is not in default and the motion must be denied. The purported bill of exceptions is very brief. It recites the coming on of the case for trial, the trial thereof before the court without a jury, the making and filing of findings of fact, conclusions of law and judgment thereon against the plaintiff, the service and filing by plaintiff of notice of intention to move for a new trial with a copy of the notice of intention, the setting of the same for hearing, the making of said motion for new trial and argument thereof and that the same was argued and denied, the minute order thereon being as follows: "Motion for new trial comes on for hearing, plaintiff appearing in propria persona, and Paul E. Schwab et al. for defendant. Motion for new trial is argued and denied." It recites the service of notice of the order denying the new trial, an order extending *335 plaintiff's time within which to prepare and serve a bill of exceptions to be used upon appeal from the judgment, the preparation and service of this proposed bill of exceptions, and the certificate of the trial judge certified that "the foregoing bill of exceptions is settled and allowed as correct."
As stated above, the sole question necessary to be decided upon this motion is whether or not this constitutes a bill of exceptions and such a bill as may properly be used upon this appeal from the judgment. It is respondents' contention that the so-called bill of exceptions is not in fact a bill of exceptions at all and should be disregarded for the reason that, there is nothing in the alleged bill showing that the appellant excepted to the order denying the motion for a new trial. Respondents contend that since the amendment of 1915 (Stats. 1915, p. 209) to section 963 of the Code of Civil Procedure, which took away the right of appeal from an order denying a motion for new trial, it has been necessary for the party against whom such an order was made, if present at the making thereof, to expressly except thereto in order to have the correctness thereof reviewed upon appeal. Section
Respondents say that prior to the 1915 amendment an order denying a motion for new trial was deemed excepted to solely because of the circumstance that it was an appealable order. [1] But we are of the opinion that it is also comprised within the phrase "the final decision in an action or proceeding." [2] A motion for a new trial is a new and independent proceeding in a sense collateral to the action which terminated in the judgment. (1 Hayne on New Trial, sec. 2.) [3] The order denying such motion when duly made and properly entered in the minutes of the court is the final decision in that proceeding and is one which finally determines the rights of the parties in so far *336
as they are involved in that particular proceeding. Nothing else remains to be done thereafter either by the court or the parties in so far as the finality of that proceeding in the trial court is concerned. It is true that this court, inSouthern Pac. R. R. Co. v. Superior Court,
Nine years have elapsed since the amendment to section 963, which took away the right of appeal from an order denying a motion for new trial, and, so far as we are advised, this is the first time that the contention has been made that one of the effects of that amendment was to require the express reservation of an exception to such order. *337
This circumstance is, of course, in no way conclusive, but it is strongly persuasive to the conclusion that the bar of the state has with practical unanimity placed a construction upon section
The motion is denied.