Stonesifer v. Armstrong

Citations

• 86 Cal. 594
• 25 P. 50
• 1890 Cal. LEXIS 1074

Syllabus

<p>New Trial — Bill of Exceptions — Effect of Failure to Serve in Time. — The same rule of law applies to bills of exceptions as to statements on motion for a new trial, in the respect that the party moving for a new trial must prepare and serve his bill of exceptions within the time allowed by law for that purpose, or it cannot be settled, or if settled, cannot be considered, either at the hearing of the motion or on appeal.</p> <p>Id. — Relief for Mistake and Excusable Neglect—Mandamus. —The question whether the court has power to relieve the party moving for a new trial from the objection that the bill of exceptions was not filed in time, on the ground of mistake, surprise, or excnsable neglect, under section 473 of the Code of Civil Procedure, cannot he determined upon an application for a mandamus to compel the settlement of the bill, although the court has found and certified that the same was not served in time hy reason of the mistake, inadvertence, and excusable neglect of the counsel of the moving party.</p> <p>Id.—Discretion—-Review on Appeal.—Assuming that the court has power to; grant such relief under section 473 of the Code of Civil Procedure, whether it shall do so or not is matter resting in the discretion of the court, which cannot he controlled hy mandamus, and can only be reviewed on an appeal in case there is error or abuse of discretion in the action of the court.</p>