94 Cal. 33 | Cal. | 1892
On June 13, 1889, judgment was entered in this case in favor of three of the defendants, and against the plaintiffs and two of the defendants.
The parties in whose favor the judgment was given notified the other parties of the decision on the seventeenth day of June, 1889.
On June 24, 1889, the plaintiffs and the two defendants against whom judgment was given (all of whom are appellants) gave due notice of their intention to move for a new trial on various grounds, and that the motion would be made upon a bill of exceptions thereafter " to be prepared, settled, and allowed by the court.”
On June 26,1889, a written stipulation was signed and filed by the attorneys for all the parties, giving thirty days after service of notj.ce of intention to move for a new trial in which to prepare a bill of exceptions.
On the third day of August, 1889, the attorneys for plaintiffs served their draft of their proposed bill of exceptions on the attorneys for defendants, who received the same subject to the objection that it was not served within the time stipulated, and on October 8, 1889, served their proposed amendments with a reservation therein of their objection to a settlement of the proposed bill of exceptions, on the ground that it was not served in time.
After due notice of the non-acceptance of the proposed amendments by plaintiffs, and within ten days after service thereof, plaintiffs delivered their proposed bill of exceptions, and the proposed amendments thereto, to the clerk of the court for the judge who tried the action.
On November 25th, and before any further steps towards settling the exceptions had been taken, the plaintiffs’ attorneys served on the attorneys for defend
The affidavits of Pringle and Stonesifer annexed to this notice are as follows: —
“Edward J. Pringle, being duly sworn, makes oath that since the commencement of this action he has been one of the attorneys of the plaintiffs in the above-entitled action, residing in the county of Alameda, state of California, and having his law office and place of business in the city and county of San Francisco; and that Mr. Wiliam Matthews, one of the attorneys of the defendants Kilburn, has been residing in the city and county of San Francisco; that in conducting the said cause arrangements in reference to it have been made in San Francisco between this affiant and Mr. Matthews, and in Modesto between Messrs. Stonesifer and Wright; that relations of a very friendly character have always existed between this affiant and Mr. Matthews, and as this affiant believes, between Messrs. Stonesifer and Wright; that after giving notice of intention to move for a new trial in said cause, this affiant called upon Mr. Matthews, and requested from him an extension of the usual statutory
“ 0. A. Stonesifer, being duly sworn, deposes and says that he is one of the plaintiffs in the above-entitled action, and a member of the firm of Stonesifer & Minor, attorneys for plaintiffs, and resides and has his office in the city of Modesto, county of Stanislaus; that on the twenty-fourth day of June, 1889, the above-named plaintiffs and defendants A. Montgomery and Timothy Paige duly served and filed their notice of intention to move for a new trial herein, specifying therein that the same would be made upon a bill of exceptions thereafter to be prepared, settled, and allowed
“ ‘ San Francisco, July 31, 1889.
“ ‘ My Dear Mr. Minor, — Stonesifer wrote to me that the time for serving bill of exceptions in the Kilburn case did not expire until August 3d, and I applied to Matthews to-day for an extension. Matthews alarmed me by saying that the time had already expired, and would give no other stipulation than the inclosed. Please look immediately and see which of us is right. I think Stonesifer got a stipulation on July 3d giving us thirty days. Please see how we stand, and let me know.
“ ‘Yours truly,
“ ‘ Edward J. Pringle.’
“ The stipulation referred to in the above letter is as follows:—
“ ‘ It is hereby stipulated and agreed in the above-entitled action that if the time to prepare and serve bill of exceptions has not expired, plaintiffs and defendants Paige and Montgomery may have until and including the twenty-third day of August, 1889, in which to prepare and serve proposed bill of exceptions on motion for a new trial. If the time has expired, this stipulation is void.
“ ‘ Dated July 31, 1889.’ ”
The following counter-affidavits of Messrs. Matthews and Wright were filed: —
“ William Matthews, being duly sworn, makes oath that the stipulation giving the plaintiffs Stonesifer and the defendants Paige and Montgomery additional time to prepare a bill of exceptions in support of their motion for a new trial was written by affiant in the presence of Mr. Edward J. Pringle, and that the time therein named as the period within which the bill of exceptions should be filed and served was then agreed upon by Mr. Pringle and affiant, and according to the best of affiant’s recollection the said stipulation was read by affiant to Mr. Pringle before said stipulation was signed.
“ William Matthews.”
“‘Rule 28. No agreement, consent, or stipulation between the parties or their attorneys, in respect to the proceedings in a cause, will be regarded by the court, unless the same shall have been made in open court, and entered by the clerk in the minutes of that day’s proceedings of court, or unless the evidence thereof shall be in writing, subscribed by the party against whom the same is alleged, or by his attorney.’
“ Affiant does not remember the conversation fully which occurred between said Stonesifer and himself on the twenty-fourth day of June, 1889; but alleges that when affiant signed said stipulation he did so with full understanding of its contents, and did not know that said Stonesifer did not so understand it; denies that in anything which affiant may have said he meant to mislead said Stonesifer or any one else, and alleges that he expected that if further time were required for said purpose it would be applied for in the regular way; denies that affiant ever said to said Stonesifer that said stipulation was in any other or different form from what it was and is; and denies that affiant said it was a stipulation extending said time to thirty days in addition to the time allowed by law. C. 0. Wright.”
On December 6th the motion was heard by the court,
1. It is contended for respondents that the order is not appealable; citing Ketchum v. Crippen, 31 Cal. 367, and other early cases to the same effect. But these cases have been expressly overruled on the point to which they are cited. (Calderwood v. Peyser, 42 Cal. 110; Morris v. De Celis, 41 Cal. 331; Dooly v. Norton, 41 Cal. 440; Clark v. Crane, 57 Cal. 630; Empire Co. v. Bonanza Co., 67 Cal. 406.) Besides, in this case a writ of mandate was denied by this court, on the ground that if the court below erred or abused its discretion, its action could be reviewed on appeal. (Stonesifer v. Armstrong, 86 Cal. 594.)
2. It is contended that the court had no power to relieve appellants from the legal effect of their failure to serve their proposed bill of exceptions in time, even though their default was caused by their excusable mistake, and the relief asked be deemed just. But the cases cited in support of this point seem to go no further than to determine what is the legal effect of the default in the absence of a proper and well-grounded proceeding to be relieved from it, and do not determine that the court has no power, under any circumstances, to relieve a party from such legal effect. The distinction seems quite as
Section 473 of the Code of Civil Procedure provides: “ The court may .... allow an answer to be made after the time limited by this code; and may also .... relieve a party .... from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.”
Section 4 of the same code declares that “ its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice.”
“ The settlement of a bill of exceptions is a proceeding in an action.” (Lukes v. Logan, 66 Cal. 33; Irwin v. Bank of Bellefontaine, 6 Ohio St. 86; Wilson v. Allen, 3 How. Pr. 371; Rich v. Husson, 1 Duer, 620; Wilson v. Macklin, 7 Neb. 52; Strong v. Hardenburg, 25 How. Pr. 438.
In Irwin v. Bank of Bellefontaine, 6 Ohio St. 86, it is said: “ The word [proceeding] is generally applicable to any step taken by a suitor to obtain the interposition or action of a court.”
In Wilson v. Allen, 3 How. Pr. 371, the court said: “ The term ' proceeding ’ is generally applicable to any step taken by a party in the progress of a civil action. Anything done from the commencement to the termination is a proceeding.”
In this case respondents objected to a settlement of appellants’ bill of exceptions, and moved the court to disregard it, on the ground that it was not filed within the stipulated time. These were steps taken in the action “ to obtain the interposition or action of the court,” which, according to the cases cited, amounted to a proceeding against the appellants, even within the letter and certainly within the spirit of section 473 of the Code of Civil Procedure, and not distinguishable in principle from a proceeding to obtain a judgment by
3. I think the showing made by appellants was sufficient, and that the court should have granted the relief asked. There appears to be no reason to doubt that the failure to serve and filé the proposed bill of exceptions within the stipulated time was caused solely and entirely by an excusable inadvertence of one of the attorneys for plaintiffs (Mr. Stonesifer), who was also one of the plaintiffs in the action, and therefore directly interested in having the proposed bill served in time.
Before reading the stipulation (which had been prepared in San Francisco and sent to Mr. Wright at Modesto), Mr. Stonesifer had the impression that the time to be allowed by it was thirty days in addition to the time allowed by law, and upon hastily glancing over it and reading “ thirty days,” he assumed that it was so, without carefully reading the whole stipulation. This was negligence, but under the circumstances, and considering that the time allowed by such stipulations is generally expressed to be in addition to the time allowed by law, and that the stipulation could have no other effect than to add to the time allowed by law, I think the negligence was excusable, and so thought the court that heard the motion, as appears by its opinion. It certainly cannot be attributed to bad faith. It also appears that the granting of the relief would be in furtherance of justice.
I therefore think the order should be reversed, and cause remanded for further proceedings.
Belcher, C., and Foote, 0., concurred.
For the reasons given in the foregoing opinion, the order appealed from is reversed, and the cause remanded for further proceedings.
Hearing in Bank denied.