A. W. BRODE et al., Respondents, v. WILLIAM G. GOSLIN et al., Defendants; JOHN G. RITTER, Appellant, 158 Cal. 699

ANGELLOTTI, J. Motion by respondents for an order striking out certain matters contained in the transcript on appeal and also to dismiss appeals taken by defendant Ritter from an order denying his motion for a new trial, from an order denying his motion to vacate the judgment in said action, and from an order refusing to settle a bill of exceptions to be used on appeal.

The only grounds urged for the dismissal of the appeals from the order denying a new trial and the order denying the motion to vacate the judgment are that the appeals were not taken in time, and that the orders appealed from are not contained in any bill of exceptions or statement. As to the latter ground: It is not necessary that the orders appealed from should be contained in any bill of exceptions or statement. Copies of the orders appealed from certified by the clerk, together with a copy of the notice of appeal, are all that are requisite to sustain the appeal from such orders. (Code Civ.

Proc., secs. 951, 952.) It may be that without a bill of exceptions or statement showing facts upon which error in making the orders is apparent, the appellant is not likely to succeed upon his appeal, but this goes to the question of the merits of the appeal and does not warrant a dismissal. The order denying the motion to vacate the judgment was made February 21, 1910, and the appeal therefrom was taken April 6, 1910. This was within the sixty days allowed by subdivision 3 of

section 939 of the Code of Civil Procedure. The order denying a new trial was made January 10, 1910, and the appeal therefrom was not taken until April 6, 1910, which was more than sixty days from the making of the order. The record does not show, however, that notice of entry of said order was ever served on appellant’s attorneys of record (see Foss v. Johnstone, ante, p. 119, [110 Pac. 294, 296]), and it was expressly admitted at the argument of this motion that no such notice had ever been given.

In view of the provisions relating to an alternative method of taking appeals, appellant had sixty days from the giving of such a notice within which to take an appeal, provided that the appeal must in any event be taken within six months. (Code Civ. Proc., secs. 941a and 941b.) The appeal therefore was in time. The settlement of a proposed bill of exceptions was refused by the judge of the trial court on the ground that the same had not been presented'within the time allowed by law.

It is claimed that appeal is not the remedy for such a refusal and, in view of the now well-established rule in this state, this claim must be held good. We are not dealing with the case of a denial of a party’s motion for relief under

section 473 of the Code of Civil Procedure, where he has failed to comply with the law in the matter of presenting his proposed bill of exceptions. It appears to be well settled that an order denying such an application is appealable. There was no such application for relief in this case, but only a mere refusal of the trial judge to settle the proposed bill. If appellant had not complied with the requirements of the law in the matter of the presentation of his proposed bill of exceptions he was not entitled to have the same settled unless relieved by the court from his default under the provisions of

section 473 of the Code of Civil Procedure. If he had complied with the law and the trial judge erroneously concluded that he had not so complied and therefore refused to settle the bill, such wrongful refusal is not the subject of an appeal, and the proper and exclusive remedy for such wrongful refusal is mandamus to compel the settlement. (Murphy v. Stelling, 138 Cal. 641, [72 Pac. 176] ; Whipple v. Hopkins, 119 Cal. 349, [51 Pac. 535] ; Machado v. Kinney, 135 Cal. 354, [67 Pac. 331] ; Hudson v. Hudson, 129 Cal. 141, [61 Pac. 773] ; Miller v. American etc. Co., 2 Cal.

App. 271, 274, [83 Pac. 289] ; see, also, Landers v. Landers, 82 Cal. 480, [23 Pac. 126] ; Pendergrass v. Cross, 73 Cal. 475, [15 Pac. 63] ; Gay v. Torrance, 145 Cal. 144, [78 Pac. 540].) Respondents also move for an order striking out and expunging from the transcript on appeal certain matters contained therein, which it is claimed cannot be considered on the appeal because not contained in any bill of exceptions or statement, or authenticated in any manner allowed by statute or the rules of this court.

This 'court cannot well entertain and consider motions of this character in advance of a hearing of the appeal on its merits. If upon a consideration of the appeal it be found that the matters referred to have no proper place in the record, they will be disregarded. The appeal from the refusal of the trial judge to settle appellant’s proposed bill of exceptions is dismissed. In all other respects respondents’ motion is- denied. Shaw, J., Sloss, J., Lorigan, J., Melvin, J., and Henshaw, J., concurred.