239 P. 850 | Cal. | 1925
The plaintiffs and respondents move the court for an order striking out the bill of exceptions contained in the transcript on appeal herein, upon the ground that it was served and presented for settlement to the trial court too late. The record herein discloses that this was an action for an injunction with damages; that the findings of fact and conclusions of law of the trial court were filed on *113 September 5, 1922, and that the judgment of said court based thereon was also filed and entered on that day; that no notice of the entry of said judgment was ever served upon the defendant. On September 13, 1922, the defendant applied to the trial court for and obtained an order staying execution. On September 14, 1922, the defendant served his notice of intention to move for a new trial. On September 18, 1922, he served upon the plaintiff and filed his notice of appeal from the judgment wherein he recited that he "appeals to the supreme court of the state of California from the final judgment in said action given in favor of the plaintiffs and against said defendant, entered on the 5th day of September, 1922, and from the whole of said final judgment." On May 7, 1923, the trial court made and entered its formal order after a hearing thereon denying the defendant's motion for a new trial. Thereafter the defendant obtained by order of court or by stipulation between the parties additional time within which to prepare and serve his bill of exceptions, in each of which stipulations, however, the plaintiffs through their counsel stated that they objected and at all times would object to the settlement or allowance of any bill of exceptions to be used by the defendant on his appeal from the judgment, upon the ground that the same were not presented within the time limited by section 650 of the Code of Civil Procedure. The plaintiff also and on October 18, 1923, served upon the defendant and filed with the court a notice of their said objection in the same words and effect; and also in proposing their amendments to the defendant's proposed bill of exceptions reserved the same objection; and they also upon the hearing upon and settlement of said bill of exceptions made and reserved the same objection. The trial court, however, overruled said objection and allowed and settled said bill of exceptions and the same as thus allowed and settled became with the said several objections thereto a part of the transcript on appeal thereafter prepared and filed herein.
The basis of the motion of plaintiffs and respondents to have said bill of exceptions stricken from the files and disregarded upon this appeal is this: That the defendant by his act in moving for and obtaining from the trial court on September 13, 1922, an order "that execution upon the judgment herein be stayed five days from the date hereof," and also by his action in serving and filing on September 18, *114
1922, his notice of appeal to this court "from the final judgment in said action . . . entered on the 5th day of September, 1922, and from the whole of said final judgment," had thereby waived notice of entry of said judgment; that by virtue of such waiver thus appearing upon the records and files of said trial court no other or further notice of the entry of said judgment was required to be served upon the defendant in order to set in motion the running of the statutory time within which, under section 650 of the Code of Civil Procedure, the said defendant must have prepared and served his bill of exceptions and also the time within which, under section
The respondent cites numerous cases wherein it has been decided that the party to an action desiring to move for a new trial or take an appeal may waive his statutory right to notice of the decision or of the entry of judgment by doing some act which caused it to appear upon the records and files of the trial court that such party had actual knowledge of the fact of the filing of the decision of the court or of the entry of its judgment; and that in such cases formal and written notice of the court's action was not necessary to be served upon such party in order to start the running of the time within which he must exercise his statutory rights in presenting his motion for a new trial or to take and present a record upon appeal. As, for example, it has been held by this court in the case of Gardner v. Stare,
The foregoing limitations upon the power of trial courts in the matter of considering and disposing of motions for new trial were added to said section of the code by the legislature of 1915. (Stats. 1915, p. 202.) The section as then amended provided for a period of three months "after the verdict of the jury or service on the moving party of notice of the decision of the court within which the power of the court must be exercised in passing upon the motion for a new trial; and it was further therein provided that if said motion is not determined within said three months the effect shall be a denial of the motion without further order of the court." In the case of Moore v. Strayer,
Shenk, J., Seawell, J., Lennon, J., Lawlor, Acting C.J., Waste, J., and Houser, J., pro tem., concurred.