COLBURN BIOLOGICAL INSTITUTE v. DE BOLT

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District Court of Appeal, Second District, Division 2, California.

COLBURN BIOLOGICAL INSTITUTE et al. v. DE BOLT et al.*

Civ. 10632.

Decided: November 22, 1935

Chas. M. Easton and Palmyra Pressly, both of Los Angeles, for appellant. D. W. Richards and H. F. Poyet, both of Los Angeles, for respondents.

Respondents move to dismiss the appeal in this action.

The sole question presented for determination is: Was appellant's proposed bill of exceptions served and filed within the period prescribed by section 650 of the Code of Civil Procedure?

Notice of entry of judgment was served on June 19, 1933. May 21, 1934, appellant served and filed a proposed bill of exceptions, which was settled by the trial judge August 7, 1934. It thus appears that appellant's time to serve and file a proposed bill of exceptions expired July 9, 1933, in the absence of an order or stipulation extending the time within which to perform this act. Section 650, Code Civ.Proc. When a proposed bill of exceptions is not served and filed within the period prescribed by the Code of Civil Procedure, it is the duty of appellant to show affirmatively in the record a legal excuse for the delay. Rossi v. Scott, Magner & Miller, 41 Cal.App. 646, 647, 183 P. 263. The record in the instant case is devoid of any such showing.

Appellant directs our attention to several orders of this court made in 1935 extending time within which to file a printed transcript on appeal. These orders cannot be construed to relieve appellant from her default in failing to serve and file her proposed bill of exceptions within the requisite period, as the court was without jurisdiction to grant her relief under the provisions of section 473 of the Code of Civil Procedure (as amended by St. 1933, p. 1851, § 34); she having been in default for more than six months prior to the making of the earliest order. Buis v. Lindauer Corporation, 116 Cal.App. 558, 561, 3 P.(2d) 18; section 473, Code Civ. Proc. The principle of law in the instant case is identical with that in Buis v. Lindauer Corporation, supra.

Respondent's motion is granted. The appeal is dismissed, and the judgment is affirmed.

McCOMB, Justice pro tem.

We concur: CRAIL, P. J.; WOOD, J.