MANNING v. GAVIN

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District Court of Appeal, First District, Division 1, California.

MANNING v. GAVIN et al.*

Civ. 10847

Decided: November 30, 1938

Philip R. McEnerney, of San Francisco, for appellant. Leslie L. Heap, of Los Angeles, and J. Thaddeus Cline, of San Francisco, for respondent.

This is a motion by respondent to dismiss an appeal taken on a bill of exceptions from a judgment in respondent's favor in an action brought against her by appellant for attorney's fees. One of the grounds of the motion is that because of the lapse of statutory time the trial court was without jurisdiction to settle the bill of exceptions, and that therefore there is no valid record upon which the appeal may be presented and determined. We are of the opinion that the motion must be granted.

Section 650 of the Code of Civil Procedure allows ten days after notice of the order denying a motion for new trial within which to prepare and file a draft of a bill of exceptions. It also provides that the trial court or judge thereof may extend such time. But section 1054 of the Code of Civil Procedure expressly declares that no such extension shall be granted by the trial court or judge thereof for more than thirty days without the consent of the adverse party. And in applying the foregoing code provisions it has been definitely held by the Supreme Court and the District Court of Appeal that any order made by the trial court or judge thereof extending the time for the preparation and filing of a proposed bill of exceptions beyond the thirty-day limitation fixed by said section 1054 is ineffectual and void. Keown v. California Pacific Realty Co., 207 Cal. 769, 279 P. 764; Perrine v. Comstock, 118 Cal.App. 98, 4 P.2d 814. Furthermore, it is held that any extension granted under the authority of said section 1054 is void unless the order is made prior to the expiration of the ten days granted by section 650 (Lantz v. Vai, 199 Cal. 190, 248 P. 665) or prior to the lapse of such additional time as may have been granted pursuant to said section 1054. Perrine v. Comstock, supra.

The admitted facts of the present case are these: Notice of the order denying appellant's motion for new trial was duly served on appellant's attorney on August 20, 1937, and filed on the same day, one of said attorneys having acknowledged receipt of a copy thereof on that date; so that the ten days allowed by said section 650 to prepare and file a draft of a bill of exceptions expired on August 30, 1937. However, nothing of record was done in behalf of appellant until September 7, 1937, at which time his attorneys obtained from the trial court an order extending the time to prepare and serve his proposed bill until October 5, 1937. As will be noted, said order was not made until eight days after the expiration of the ten days allowed by said section 650; moreover, said order purported to extend appellant's time six days beyond the thirty-day limitation of time fixed by said section 1054. Continuing, the record goes on to show that soon after said order of extension of September 7, 1937, was made, and during the latter part of that month, respondent gave notice of two motions. The first was to vacate and set aside the order of September 7, 1937, upon the ground that it was made too late; and the second was to terminate the proceedings for the preparation and settlement of the bill of exceptions upon the ground that the time allowed therefor by said section 650 had expired. Appellant countered with a motion made under the authority of section 473 of the Code of Civil Procedure to be relieved of his default in failing to prepare and file his proposed bill or to obtain the necessary extension order therefor within the ten days allowed by section 650. The excuse offered in support of his latter motion was that the law clerk in the office of one of appellant's counsel had made a mistake in nothing the date of service of the notice of the order denying the motion for new trial. The three motions came on for hearing at the same time, and the court forthwith granted respondent's motion to set aside and vacate the order of September 7, 1937, and later, on October 2, 1937, it denied respondent's motion to terminate the proceedings for the preparation and settlement of the bill of exceptions and granted appellant's motion relieving him of his default. No further or other order extending time to prepare and file the proposed bill of exceptions was ever made. Nevertheless, on October 5, 1937, appellant served his proposed bill of exceptions and filed the same the next day. Thereupon respondent filed written objections to the settlement thereof upon the ground of want of jurisdiction. She also made application to the District Court of Appeal for a writ of prohibition to prohibit the settlement and signing of said bill, but the application was denied without a hearing, evidently upon the ground that it was within the jurisdiction of the trial court to hear and determine the objections made to the settlement of said bill. Subsequently the trial court overruled respondent's objections and settled and signed the bill, and thereafter the transcript on appeal embodying said bill of exceptions was printed and filed.

From the foregoing it will be seen that not only was the proposed bill of exceptions served and filed several days after the maximum time allowed therefor by said sections 650 and 1054, but that at the time of the service and filing thereof there was no extension order whatever in existence permitting the filing thereof. It follows, therefore, that the same was served and filed without authority of law, and consequently the trial court was without jurisdiction to settle or sign the same. The case in its essential facts is almost identical with that of Perrine v. Comstock, supra. There the appealing party was granted an order extending his time until April 20th to prepare, serve and file his proposed bill. However, his next recorded move was not until April 23d, when another ex parte order extending his time was secured, the time named being May 23d. The court said: “This order was entirely ineffectual, for it was not made until after the expiration of the time which had been granted him. Lantz v. Vai (1926) 199 Cal. 190, 248 P. 665. Moreover, if the order had been made April 20, or before, it could not have extended the period beyond May 2; a total extension of not more than thirty days beyond the ten days the statute gives being the most the court was authorized to allow. Section 1054, Code Civ.Proc.; Keown v. California Pacific Realty Co. (1929) 207 Cal. 769, 279 P. 764.” And in holding to the same effect the Supreme Court in the Keown Case, supra, said [page 765]: “* it sufficiently appears from the averments of his own petition herein that the ex parte orders which he obtained extending the time for the settlement of his proposed bill of exceptions were ineffectual and void as in violation of the provisions of section 1054 of the Code of Civil Procedure, which expressly provide, with relation to the preparation and settlement of bills of exceptions that the time allowed therefor by the Code shall not be extended beyond the period of 30 days without the consent of the adverse party.”

In opposing the present motion appellant cites the cases of Banta v. Siller, 121 Cal. 414, 53 P. 935, and McWilliams v. Hudson, 98 Cal.App. 185, 276 P. 598, 277 P. 529, to the effect that the code sections relating to serving and filing a proposed bill of exceptions are merely directory. These cases are not in point, however, for the reason that neither involves the application of the provisions of said section 1054, which is the controlling section here. Nor are any of the other authorities cited by appellant applicable to the situation here presented.

The appeal is dismissed.

KNIGHT, Justice.

We concur: TYLER, P.J.; CASHIN, J.

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