57 Cal. 501 | Cal. | 1881
This case arises out of an action which was commenced in the late District Court of Mono County by the respondents, who were plaintiffs in the Court below, to obtain a judgment
An order refusing to set aside a default is not an appealable order. Therefore, the only appeal before us is from the judgment, and that presents for consideration the judgment roll only, unless the bill of exceptions contained in the transcript is to be considered as part of the record of the case." The respondents attack it as too late, because it was not presented for settlement at the time the exception was taken, according to § 649 of the Code of Civil Procedure.
But that section only declares that a bill of exceptions to any decision may be presented to the court or judge for settlement at the time the decision is made; and after having been settled, shall be signed by the judge, and filed with the clerk. If a statute absolutely fixes the time within which an act must be done, it is peremptory. The act cannot be done at any other time, unless during the existence of the prescribed time it has been extended by an order made for that purpose under authority of law. Section 1054 of the Civil Code of Procedure authorizes such an extension to be made within the limits of thirty days. But no order extending time in this case was
That was the construction of §§ 649 and 650 by the late Supreme Court before the sections were amended by the Legislatures of 1874 and 1876. Under § 649 as it existed before it was amended, a party excepting had the right to present his bill of exceptions at the time of the ruling of which he complained; but if not presented at the time of the ruling, it might be presented under § 650 as it was before its amendment, upon one day’s notice, at any time within thirty days after the entry of judgment; and the late Supreme Court held that a party was not bound to present his bill of exceptions under § 649 at the time of the ruling, but had a right to have it settled, under § 650, at any time within thirty days after the entry of judgment, and within such further time as the Court below might grant by an order made before the expiration of the thirty days. (Higgins v. Mahoney, 50 Cal. 444; Caldwell v. Parks, 47 id. 640; Berry v. N. P. C. R. R. Co. 50 id. 435.)
The amendments of those sections were intended to regulate the right, not to destroy or limit it. As amended, they regulate the right of a party who has taken an exception to any decision made in the course of proceedings in a case, before final judgment, to have it settled within thirty days after the entry of judgment, or of service of notice of the entry of judgment, by following the course prescribed by § 650.
It is contended, however, that § 650 refers only to exceptions taken at-the trial of a cause, and not to exceptions taken in the
Now it appears from the record that the attorneys of the parties to the action resided in Bodie, twenty miles away from the county seat of Mono County; that on the 20th of April, 1879, the defendant’s attorneys forwarded to the clerk of the court, to be filed, certain demurrers to the complaint, copies of which had been served on the plaintiffs’ attorneys, together with notice that the demurrers would be called for argument on May 2nd, 1879. The demurrers were regularly delivered to the clerk of the court on the 29th of April, 1879. He received them without demanding his fees for filing them. But about six o’clock p. m. of May 1st, 1879, defendant’s attorneys received a letter from the clerk, informing them that he demanded payment of his fees for filing the demurrers. On the morning of the 2nd of May, the attorneys left Bodie for the county seat, and arrived there the same day about
We think the District Court should have set aside a default entered under such circumstances. When the demurrers were placed in the custody of the clerk, he had a legal right to refuse to file them, unless the fees for that service were paid to him. (Cal. Codes, Stats, in Force, § 765; § 4332, Pol. Code.) But he did not refuse, nor did he demand any fees then or after-wards for filing the demurrers. Three or four days after he received them for filing, he demanded by letter “ $66 as fees on filing twenty-two demurrers in said case. ” But there was no law which allowed $3 as a fee for filing a demurrer; the demand was therefore unauthorized by law. Having failed to demand his fees for filing the demurrers at the time they were delivered to him to be filed, or at any time thereafter, he waived his personal privilege of requiring prepayment. There is no question but that a clerk of a court may waive a right created by statute. (Lido v. Madden, 25 Cal. 203.) When, therefore, the demurrers were brought and deposited with the clerk for filing, they were, in contemplation of law as to the defendant, on file in the case. A paper in a case is said to be filed when it is delivered to the clerk and received by him, to be kept with the papers in the cause. (Engleman v. State, 2 Ind. 91.) Filing a paper consists in presenting it at the proper office, and leaving it there, deposited with the papers in such office. Indorsing it with the time of filing is not a necessary part of filing. (Bishop v. Cook, 13 Barb. 326.) When filed, it is considered an exhibition of it to the court, and the clerk’s office in which it is filed represents the court for that purpose. (Lamson v. Falls, 6 Ind. 309.)
As the demurrers were before the Court, the default of the defendant for not answering was prematurely entered, and the Court should have set it aside. The defendant had a right to have the demurrers disposed of. It was the duty of the clerk to have indorsed upon them the date of their filing. His omission of duty could not prejudice the defendant in any of its legal rights.
Morrison, C. J., Sharpstein, J., and Myrick, J., concurred.
[Thornton, J., took no part in the decision.]