Hicks v. Masten

Citations

• 101 Cal. 651
• 36 P. 130
• 1894 Cal. LEXIS 1094

Syllabus

<p>Bill of Exceptions—Notice of Presentation—Waiver.—The written notice of the presentation of a proposed bill of exceptions, and the amendments thereto to the judge for settlement, provided for in section 650 of the Code of Civil Procedure, is. for the benefit of the adverse party, and may be waived by him.</p> <p>Id.—Failure to Object Promptly—Duty of Court.—The party or attorney who seeks to avail himself of the want of written notice of the presentation for settlement of a bill of exceptions and the amendments thereto, or of any technicality not affecting his substantial right, must be held to a prompt, consistent, and exact assertion of such technical right; and the failure to object on account of such want of notice at the time when the court fixed a date for the settlement, and requested the attorney proposing the amendments to be present, and his assent implied in the statement that he would “be on hand,” is a waiver of any other or different notice, and the court should proceed to the settlement of the bill at the time designated, notwithstanding written objections then urged to the settlement for want of written notice of the presentation.</p> <p>Id.—Mandamus.—Mandamus will lie to compel the settlement of a bill of exceptions prepared in time, which the judge has refused to settle on account of an objection of the opposite party for want of written notice of presentation, which has been waived by him.</p>