72 P. 176 | Cal. | 1903
This is a motion to dismiss defendant's appeal from an order of the superior court denying his motion for relief on the ground of surprise, accident, etc., under section
In the printed briefs the motion to dismiss is based upon two grounds: 1. That the refusal to settle a statement is not an appealable order, and, a fortiori, that a refusal to vacate such an order cannot be appealable; and 2. That if a refusal to settle is appealable the appeal must be taken therefrom directly, and cannot be prosecuted from the order in question here, which, it is claimed, is in substance merely a refusal to set aside an order itself appealable. In the oral argument respondent abandoned the first proposition, and contended, on the authority of Stonesifer v. Armstrong,
But when the party seeking the settlement has not strictly and fully complied with statutory requirements and appeals to the court for relief upon the ground that his failure has been caused by surprise, accident, or excusable neglect, and when necessarily the granting of relief rests in the sound discretion of the court, a different case is presented. In such a case mandamus is a wholly inadequate remedy, because the discretion of the trial court may not be coerced. (Stonesifer v. Armstrong,
The motion to dismiss is denied.
Shaw, J., Angellotti, J., Van Dyke, J., McFarland, J., and Lorigan. J., concurred.