Bryant v. Sternfeld

Fitzgerald, C. — The transcript in this ease contains two appeals; one upon the judgment roll, from a judgment rendered in favor of defendants; the other from an order dismissing plaintiffs’ motion for a new trial. It appears from the record that the order appealed from was made upon the ground that the order granting to plaintiffs an extension of time for thirty days, “ to prepare their statement on motion for a new trial,” did not extend the time to serve it. Section 1054 of the Code of Civil Procedure, under which the court or judge derives the authority to make the order for such extension, provides only for the .preparation of statements, and the word “service,” as there used, is expressly limited in its application to notices other than appeal. The order here made, extending the time for the purposes therein stated, is in strict compliance with the provisions of this section, and carries with it the same extension of time to serve the statement. (Curtis v. Superior Court, 70 Cal. 390; Burton v. Todd, 68 Cal. 485.) Subdivision 3 of section 659 of the Code of Civil Procedure, upon which counsel for respondent mainly relies in support of his contention that the order referred to did not extend the time to serve the proposed statement, has no application, as we have already shown, to an order granting an extension of time to prepare such statement, but simply provides that “ the moving party must,” within the time therein prescribed, or the time, allowed by the court or judge, “prepare a draught of the statement and serve the same or a copy thereof upon the adverse party.” The record shows that the proposed statement was prepared and served upon defendants’ counsel within the time fixed by the order. [613] It follows, therefore, that as the court below erred in making the order appealed from, it should be reversed, and the cause remanded for further proceedings on the motion for a new trial. No error appearing on the judgment roll, the judgment should be affirmed, and we so advise. Foote, 0., and Belcher, 0., concurred. The Court. —For the reasons given in the foregoing opinion, the order appealed from is reversed, and the cause remanded for further proceedings on the motion for a new trial, and the judgment is affirmed. Hearing in Bank denied.