105 P. 590 | Cal. | 1909
This is an appeal from an order of court which, in its essence is really two orders, one granting plaintiff's motion to set aside an order extending time for service of defendant's statement on motion for new trial; the other denying defendant's motion for relief under section
It is practically conceded that the last order of court, extending time for service of the statement, was made without authority; therefore it will be necessary to discuss only the other appeal which really involves the whole matter.
Defendant's notice of motion for new trial was served on plaintiff on April 15, 1907. A clerk in the office of defendant's attorney thereafter secured orders from the judge before whom the case was tried extending time to serve the proposed statement on motion for new trial until June 23, 1907. Before the expiration of this time and during the absence of the judge who had signed the previous orders, one of his associates granted a further extension to and including the third day of July, 1907. All of these orders were served in the usual manner, plaintiff's attorneys acknowledging receipt of copies before the documents were filed. On July 2, 1907, the proposed statement was served on plaintiff's attorneys and on the same day they served on defendant's attorney their motion to vacate the last order of continuance upon the ground that the court had no jurisdiction to make it. Thereafter proposed amendments were prepared and served and defendant gave notice that said amendments were not assented to nor adopted by it. Finally, after a continuance by consent of the parties, the matter came on regularly on August 27, 1907, for settlement of the statement before the judge who had presided at the trial of the case, and as plaintiff's attorneys objected to the settlement of any statement, the matter was set for hearing on August 30, 1907. Before the last-mentioned date, defendant's attorney served and filed his motion for relief under section
The affidavit of Mr. Williamson shows that he was busily engaged after the 15th of April, 1907, and during most of the time involved in the period following that date either in court or in preparation of briefs; that he was ill during a large part of the month of June; that he intrusted the matter of obtaining time for preparation of his proposed statement on motion for new trial to his clerk who, from time to time, informed the affiant that he had obtained more time in the "Mitchell case"; and that the attorney believed his subordinate *578 was getting extensions of time from plaintiff's attorneys by stipulation. He also made the usual affidavit of merits. Mr. Nelson, Mr. Williamson's managing clerk, by affidavit corroborated the statements in his employer's affidavit.
Respondent calls our attention to the fact that Mr. Williamson's first affidavit states that he was engaged in the superior court of Lassen County during a part of the month of May, when in reality he was in that county in April. This was doubtless an inadvertence which the attorney was permitted by the court to correct in a supplementary affidavit. It was really immaterial, because the time spent in Lassen County was during the period when, in the ordinary course of practice, the statement would have been prepared, and testimony regarding the occupation of Mr. Williamson during any part of that period was relevant as tending to show reason not only for delay but for intrusting the matter of continuances to his clerk.
The counter affidavit of one of plaintiff's attorneys calls attention to the fact that the clerk is an attorney at law who should have known the rules of practice, but who probably overlooked section
Under all the circumstances disclosed, we think that the relief for which application was made should have been granted. The tendency of this court has always been to relieve parties from their defaults and mistakes, upon proper *579
showing, to the end that matters may be heard upon the merits. Treating of this subject and particularly of the interpretation of section
Ever since the decision in the case of Stonesifer v. Kilburn,
In Pollitz v. Wickersham,
It has been suggested that the real mistake upon which appellant's prayer for relief was based was one of law and not of fact. While the clerk's inadvertence was doubtless one of law, Mr. Williamson's was a mistake of fact, but the court will, in a proper case, grant relief against a mistake of law, exercising the power given it under section
Undoubtedly courts of appeal have shown great reluctance, in cases of this kind, to disturb the order made by the lower court. "Unless the record clearly shows that the court has abused its discretion, its order, whether it be to grant or deny the application, will be affirmed." (Ingram v. Epperson,
The order is therefore reversed and the superior court and the judge thereof directed to settle the proposed statement according to law.
Lorigan, J., and Henshaw, J., concurred.
Hearing in Bank denied. *581