Woodard

Mandate. In this proceeding petitioner seeks an order directing the respondent Superior Court and a judge thereof to settle a bill of exceptions.

It is conceded that the proposed bill of exceptions was not served within the time allowed by law, and that the determining question is whether there was a waiver of that fact.

Stripped of all unnecessary detail, it appears that the plaintiff in the action presented to the defendant therein, but not within the time prescribed by law, a proposed bill of exceptions; that thereupon the defendant presented to the plaintiff and filed with the clerk of the court his proposed amendments to the proposed bill of exceptions, and at the same time served the plaintiff with a notice, copy of which being as follows:

At all times after said notice was served the defendant reserved all objections and exceptions to said bill of exceptions and continually claimed and insisted that the plaintiff’s proposed bill of exceptions was not served on the defendant within the time fixed by the statute. It is true that on December 3, 1925, on being served with notice that the proposed bill and amendments would be taken up for settlement on December 9th, the…