Sauer

This is an appeal by defendant from a judgment in favor of plaintiff, and also from the order denying defendant’s motion for a new trial.

It first becomes necessary to dispose of some objections raised by respondent to the consideration of the appeal upon its merits. It is first objected that the bill of exceptions cannot be considered because not served in time; and secondly, that though the court, on application of defendant, relieved defendant, under section 473 of the Code of Civil Procedure, of its default in not serving its bill in time, it granted leave to serve a statement on motion for a new trial, and not a bill of exceptions. From the record it appears that the verdict was rendered December 8, 1903, and on the eighteenth day of December, 1903, defendant served and filed its notice of intention to move for a new trial, wherein it stated that said motion would be made on a bill of exceptions thereafter to be settled.

First, as to the point that the bill of exceptions or statement was not served in time, it is allowable for the trial court to relieve a party under section 473 of the Code of Civil Procedure from his default upon sufficient showing of mistake,…