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Pendergrass v. Cross

Supreme Court of California
Sep 27, 1887
73 Cal. 475 (Cal. 1887)

Summary

In Pendergrass v. Cross, 73 Cal. 475, the moving party adopted the proposed amendments, and there was no occasion to give to the opposite party any notice of settlement.

Summary of this case from Whipple v. Hopkins

Opinion

         Application for a writ of mandate to the Superior Court of Tulare County.

         COUNSEL:

         Sidney V. Smith, for Petitioner.

          Brown & Daggett, for Respondent.


         JUDGES: In Bank. McKinstry, J., expressed no opinion.

         OPINION

         THE COURT

         A judgment for defendant was entered in an action, wherein the petitioner was plaintiff, and one Burris was defendant. The plaintiff in that action gave notice of intention to move for a new trial, and [15 P. 64] served on defendant's attorney a draught statement of the case. Within statutory time the defendant served amendments to the statement, which were adopted by the plaintiff. We say the amendments were adopted, because the plaintiff did not indicate his non-adoption of them by serving notice that the statement and amendments would be presented to the judge for settlement, as prescribed in Code of Civil Procedure, section 659. The plaintiff, having adopted the amendments, delivered the statement as amended to the clerk, for the judge, to be settled (the judge being absent from the county), after the expiration of the time within which the statement and amendments must (upon notice) have been presented to the judge for settlement, or delivered to the clerk for the judge, had the amendments not been adopted by the plaintiff. The petitioner now prays that the judge be ordered by mandate to settle and certify the statement, the judge having refused to settle it.

         Code of Civil Procedure, subdivision 3, section 659, does not limit the time within which a statement as amended -- when the amendments are adopted by the moving party -- shall be presented to the judge, or delivered to the clerk for settlement. It may be done in a reasonable time. The superior judge, as appears from his answer herein, decided that the time was reasonable, provided the law permits a statement as amended, where the amendments are adopted, to be presented for settlement or to be delivered to the clerk, for the judge, after the time within which the statement and amendments must be presented to the judge or delivered to the clerk, in cases where the amendments are not agreed to; but that the moving party had neglected "to pursue the proper steps to have said statement settled within the time required by law." The judge having so held that the statement was delivered to the clerk within a reasonable time, it was his duty to settle and certify the statement.

         Let the writ issue.


Summaries of

Pendergrass v. Cross

Supreme Court of California
Sep 27, 1887
73 Cal. 475 (Cal. 1887)

In Pendergrass v. Cross, 73 Cal. 475, the moving party adopted the proposed amendments, and there was no occasion to give to the opposite party any notice of settlement.

Summary of this case from Whipple v. Hopkins

In Pendergrass v. Cross the party proposing the statement, having adopted the amendments, presented the statement and amendments for settlement, after the expiration of ten days from the time of service of the amendments, without having indicated, at any time, any opposition to the amendments.

Summary of this case from Hiestand v. West
Case details for

Pendergrass v. Cross

Case Details

Full title:T. W. PENDERGRASS, Administrator, etc., of George T. Thornton, Deceased…

Court:Supreme Court of California

Date published: Sep 27, 1887

Citations

73 Cal. 475 (Cal. 1887)
15 P. 63

Citing Cases

Hiestand v. West

Since then, as we find the fact to be, the defendants did not adopt the amendments and bring such adoption to…

Gay v. Torrance

All the facts above recited, and others which we deem immaterial, were shown to the judge at this time, and…