100 P. 884 | Cal. Ct. App. | 1909
The appeal is from an order of the superior court denying the application of appellant to be relieved from its default in failing to propose, within the time required by law, its statement on appeal from the order denying its motion for a new trial, and refusing to settle the statement.
On February 26, 1907, findings and a judgment in favor of the defendant were filed and entered. The motion for a new trial was made upon affidavits and upon the minutes of the court and it was denied on June 27, 1907. On July 2, 1907, the trial judge made an order extending plaintiff's time thirty days within which to prepare and serve the statement. Similar orders for five, seven and seven additional days, respectively, were made by Judge Coffey in the absence of Judge Seawell, the trial judge, and none of these orders was served upon the defendant or his counsel. On August 24, 1907, plaintiff *761
served upon defendant its proposed statement on appeal. On September 3, 1907, the defendant served his proposed amendments but expressly objected to the settlement of the statement upon the ground that the court had no jurisdiction to settle the same, for the reason that it was not served in time: "That under the provisions of section
Thereupon, on September 7th, the plaintiff served a notice of a motion to be made by it, on September 13th, to be relieved from its failure to serve its statement within the forty days. The motion was supported by affidavits and counter-affidavits were filed by defendant. The decision, as we have seen, was against plaintiff.
Appellant concedes that "the court was without jurisdiction to grant an extension of time beyond August 6th," and that "the statement was served just eighteen days too late." It is admitted, also, "that the granting or denial of relief for failure to present the statement within the time allowed by law rested largely in the discretion of the trial court. (Stonesifer v. Armstrong,
But it is insisted that the trial court abused its discretion, and that in determining the question "the appellate court should review the action of the trial court in the light of the rule that the trial court, in case of doubt, should resolve the doubt in favor of the application," quoting from the Banta case, supra. This, however, is not a rule to guide the reviewing court, but the quotation is merely one of the hortatory suggestions to the trial court in which the appellate courts, with commendable zeal, often indulge, but which, we fear, are often disregarded. The appellate court may have a doubt of the correctness of the ruling; it may be of the opinion that the trial *762 court should have ruled otherwise, but that is not a sufficient reason for reversal. It cannot substitute its own judgment for that of the trial court. Otherwise, the trial court would be divested of all discretion. It must appear equally clear that the appellate court cannot determine, as a matter of fact, whether the trial court had any doubt as to the sufficiency of the exculpation from the apparent negligence, nor, where reasonable men might draw opposing conclusions, can it be held, as a matter of law, that the trial court should have decided the question one way or the other. The sole question for us to decide is, Did the trial court abuse its discretion?
We quote from Alferitz v. Cahen,
There is applicable here another observation made by Judge Henshaw to the effect that if the trial court had reached the opposite determination and had granted the application, the conclusion would not have been disturbed, but that is far from a declaration that the decision which the court actually reached was unwarranted, and therefore an abuse of its discretion. *763
The question is similarly discussed in Vinson v. Los AngelesPac. R. R. Co.,
In the light of these and other decisions we cannot disturb the action of the court below, as it does not appear that the court abused its discretion; on the contrary, we must hold that the facts warranted an inference that the default of plaintiff was not legally excusable. The main circumstance upon which plaintiff relied for acquittal of the imputation of negligence was a severe affection of the eyes of Mr. Houx, the attorney to whom was committed the task of preparing the statement. But, as pointed out by respondent, this trouble was of seven or eight years' standing, and on account of its character must have been known to plaintiff and to its other counsel in the case, of whom there were four able members of the San Francisco bar.
Even if the afflicted attorney had been the only counsel, under the circumstances the court, without an abuse of discretion, might have rejected the excuse as insufficient. InEkel v. Swift,
The court also was justified in holding that the want of knowledge of Mr. Houx concerning the prohibition of the statute in relation to extension of time cannot be held to be the result of mistake, surprise or inadvertence. The principle is the same as that involved in the Ingrim case, supra, wherein it is said: "The rules of procedure for the purpose of preparing a record to be used upon an appeal from a judgment are so clearly set forth in the Code of Civil Procedure, and have been so frequently passed upon by this court, that ignorance of the *764 time within which a statement or bill of exceptions must be prepared and served cannot be the result of mistake or surprise or inadvertence, and the neglect to prepare and serve it within the time prescribed by the code is not excusable."
Upon the whole we are satisfied that to reverse the order would be an unwarranted interference with the discretion, which, under our system, is wisely committed to the conscience and judgment of the trial court, and would be to encourage a relaxation of a wholesome rule that fosters expedition in the determination of causes.
The order is affirmed.
Chipman, P. J., and Hart, J., concurred.