Summary
In Howell v. Peaersen, 41 Cal.App. 45 [ 181 P. 674], where a bill of exceptions was not served in time and where the party upon whom it was served requested and received time additional to that provided by law, but at the same time, as well as within the admission of service upon such party of the proposed bill, reserved the right "to make any objection to the proposed bill of exceptions," it was held that the right of objecting to the bill had been fully preserved and that no waiver had resulted.
Summary of this case from Woodard v. Superior CourtOpinion
Civ. No. 2780.
May 2, 1919.
APPEAL from a judgment of the Superior Court of Mendocino County. J. Q. White, Judge. Affirmed.
The facts are stated in the opinion of the court.
Fred S. Howell for Appellants.
Kellogg Kyle for Respondents.
This is an appeal from an order of the trial court refusing to settle and allow plaintiffs' bill of exceptions on appeal from the main judgment in the case, and denying plaintiffs' motion for relief from their default in failing to prepare and serve their proposed bill of exceptions within the time allowed by law therefor. [1] The discretionary power of a trial court in proceedings of this character is not to be interfered with, except upon a clear abuse of discretion. The trial court has decided that the plaintiffs did not make a showing of excusable neglect, and it would seem that such a conclusion was warranted. The only excuse offered by plaintiffs for their failure to prepare and serve this bill of exceptions in time was that the transcript could not be secured from the reporter in time. But upon plaintiffs' own showing, the facts appear to be that on January 31, 1918, judgment was entered in the case and notice of entry of judgment was served upon plaintiffs on February 18, 1918. Appellants did not apply to the court for an extension of time within the ten days allowed by law for the preparation and service of the bill. [2] It has been repeatedly held that an extension of time, permitted under section 1054 of the Code of Civil Procedure, must be obtained within the period during which the original right is still alive. ( Clarke v. Crane, 57 Cal. 629; Oppenheimer v. Radke Co., 165 Cal. 220, [ 131 P. 365]; Union Collection Co. v. Oliver, 162 Cal. 755, [ 124 P. 435]; Curtis v. Superior Court, 70 Cal. 390, [11 P. 652].) The time within which the court might extend plaintiffs' time had expired at the date when the court made the order upon the ex parte application of the plaintiffs extending their time for thirty days, and such order could give the plaintiffs no rights in place of those which had been lost by their delay. [3] Plaintiffs, therefore, were in default, and the court was justified in refusing to settle their bill of exceptions. [4] The order refusing to settle said bill is not appealable, and the remedy is by mandamus. ( Potter v. Pigg, 35 Cal.App. 707, [ 170 P. 1066]; Brode v. Goslin, 158 Cal. 699, [ 112 P. 280].) [5] We have discussed the question upon its merits, because it is linked with the question properly presented for our consideration upon this appeal, which is whether or not there has been an abuse of discretion by the trial court in refusing to grant plaintiffs' motion to be relieved from their default. We think this motion was properly denied, as the plaintiffs made no showing of mistake, inadvertence, surprise, or excusable neglect. As heretofore stated, the notice of entry of judgment was served on February 18, 1918. Plaintiffs then had ten days within which to prepare their bill of exceptions, or within which to ask for an extension of time for that purpose. Had they been diligent in guarding their rights — they might have had forty days from February 18th, which would have allowed them until March 30th. It appears also that plaintiffs were not diligent in ordering the transcript from the reporter. It was not ordered until March 8th — eighteen days after notice of entry of judgment. But irrespective of this fact, and despite this delay in ordering the transcript, plaintiffs, if they had secured a proper extension of time, would yet have had the transcript in their hands ten days before their time expired for serving their proposed bill of exceptions, for it appears by their own showing that the transcript was delivered to them twelve days after it was ordered, or on March 20th. Under such circumstances, this court cannot say that there was an abuse of discretion on the part of the trial court. It is only in exceptional cases that orders of this kind will be reversed. An appellate court is very loath to substitute its own opinion and thereby divest the trial court of the discretionary power reposed in it. ( Smith v. Riverside etc. Co., 19 Cal.App. 165, [ 124 P. 870]; Utah-Nevada Co. v. De Lamar, 9 Cal.App. 759, [ 100 P. 884].)
[6] Appellants next contend that the defendants waived their objections to the delay of the plaintiffs in serving their proposed bill of exceptions by requesting and receiving from plaintiffs additional time within which to propose amendments to such bill. It is asserted by appellants that the stipulation requested by defendants extending such time reserved no objection to the time within which the proposed bill of exceptions was served and that therefore that objection was waived. An examination of the stipulation relied upon discloses that the stipulation provided that the defendants and respondents should have until the thirtieth day of April, 1918, within which to propose any amendments or make any objections to the proposed bill of exceptions. If this language is not sufficiently broad to reserve the right now asserted by defendants and respondents, it is nevertheless true that an intention to waive is an essential element to effect a waiver. ( Los Angeles First Nat. Bank v. Maxwell, 123 Cal. 360, 368, [69 Am. St. Rep. 64, 55 P. 980].) The defendants, clearly, never intended to waive their objections and plaintiffs had no reason to believe that they did, for upon the admission of service of the bill, the defendants added the words: "But objections on account of not being prepared and served on time are preserved for presentation when the bill of exceptions is presented for settlement." And the stipulation setting the matter down for hearing, which is signed by the attorneys for both parties, concludes with the words: "This stipulation is made with the understanding that said defendant does not waive, and does hereby expressly reserve, any and all objections that he may have on account of plaintiffs' proposed bill of exceptions in the above-entitled action not having been prepared and served within the time allowed by law." Under these facts, it is manifest that there was never any intention to waive this objection, and such objection was not waived either in terms or by implication.
The appeal from the order refusing to settle the bill of exceptions is dismissed, and the order denying plaintiffs' motion to be relieved from their default is affirmed.
Haven, J., and Brittain, J., concurred.