251 P. 932 | Cal. Ct. App. | 1926
This appeal is from an order of the trial court denying an application made under section 473 of the Code of Civil Procedure to be relieved from a default in failing to present a bill of exceptions within the time allowed by law.
Appellants' motion was made on the following grounds: 1. "That through mistake and inadvertence of plaintiffs' counsel they were not advised of the time when plaintiffs' time for serving and presenting such proposed bill of exceptions commenced to run," and 2. "That through mistake and excusable neglect plaintiffs were unable to obtain the reporter's transcript of the testimony taken upon the trial within the time for serving and presenting their proposed bill of exceptions and were thereby prevented from preparing such proposed bill of exceptions within proper time."
In support of their motion for relief because of the asserted mistake, inadvertence, and excusable neglect of plaintiffs' counsel, the affidavit of such counsel was filed. The substance of this affidavit, after setting forth the professional engagements and press of business of affiant and letters in which respondent's counsel made no objection to the time being extended, is contained in the concluding paragraphs, as follows: "That the sole reason for plaintiffs' failure to *339
present their motion for new trial in the above entitled action within the time allowed by Section
Appellants' time for presenting their proposed bill of exceptions expired under the provisions of section
[1] The first point urged by appellants, that through mistake and inadvertence they were not advised of the time when their time for serving and presenting the proposed bill of exceptions commenced to run — that is, that because of unusual press of business plaintiffs' counsel did not discover that section
[4] As to the second ground urged by appellants that they were unable to obtain the reporter's transcript, it is sufficient to say that such transcript is not necessary on motion for a new trial; that if the phonographic reporter fails to transcribe the proceedings in time, he must, upon request of the court, or either party, attend the hearing and read his notes, or such part thereof as is requested. (Code Civ. Proc., sec.
[6] The granting or denying motions of this character is in the discretion of the trial court and such discretion will not be interfered with and its order reversed unless it is clear that the trial court has abused its discretion. (Ingrim v.Epperson,
Appellants in their brief call our attention to the cases ofNicoll v. Weldon,
The order appealed from is affirmed.
Tyler, P.J., and Knight, J., concurred.