Mulcahy

This is an application for a writ of mandate to compel the respondent to settle a bill of exceptions in the ease of Pioneer Fruit Company, a corporation, as plaintiff, against the petitioner herein, as defendant.

The petition states that the said fruit company, on the twelfth day of January, 1920, commenced an action in the superior court of said county of San Joaquin against James Mulcahy, the petitioner herein, to recover the sum of $705.18; that, upon issue being joined in said action by the filing of answer to the complaint by said Mulcahy, the cause was tried before the court, sitting without a jury, and that on June 29, 1921, the court filed its findings of fact and conclusions of law and thereupon, and on the same day, caused to be entered a judgment in favor of said fruit company and against the said Mulcahy. The petition proceeds :

The respondent’s answer to the petition alleges that the petitioner’s notice of intention to move for a new trial was served and filed on the twenty-third day of June, 1921, or some six days prior to the entry of judgment therein. It is further stated in said answer that no other notice of intention to move for a new trial was filed in said…