276 P. 598 | Cal. Ct. App. | 1929
This is an appeal from an order of the trial court relieving respondents from their failure to file a bill of exceptions within ten days after notice of entry of an order denying a motion for a new trial.
In an action commenced by respondents herein, plaintiffs below, against appellants, judgment went for the appellants. Plaintiffs, within the time allowed by law, moved for a new trial, and the motion was denied on September 8, 1925, and notice of decision was served on respondents' counsel on September 17, 1925. No order or stipulation extending time within which to file a bill of exceptions was made. On October 31, 1925, plaintiffs, without notice to the defendants, or their counsel, made an ex parte
application to the court for relief from their failure to file a proposed bill of exceptions within the period provided by law, and asked for leave of court to serve and file their proposed bill of exceptions to be used on appeal from the judgment rendered in the action, by November 6, 1925. The application was made upon the affidavit of one of counsel for plaintiffs, and on October 31, 1925, the trial judge made and entered an order relieving plaintiffs from their said failure to so file their bill of exceptions, and permitted them to serve and file the same on or before November 15, 1925. *187
[1] It is the contention of appellants that the trial court was without authority to relieve the respondents from such failure to so file their bill of exceptions, for the reason that the time limit embraced in section 650 of the Code of Civil Procedure, within which the draft of a proposed bill of exceptions may be served upon the adverse party, is mandatory. This contention, however, cannot be sustained. (See Banta v.Siller,
Also, the case of Kramm v. Stockton Electric R.R. Co.,
The order appealed from herein not being an appealable order, it is ordered that the said appeal be and the same is hereby dismissed.
Thompson (R.L.), J., and Finch, P.J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on May 9, 1929, and the following opinion then rendered thereon:
THE COURT.
Appellants in their petition for rehearing call our attention to the case of Jones v. Buck,
The petition for rehearing is therefore denied.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 5, 1929.
All the Justices concurred.