Banta

The verdict and judgment were for plaintilf. Defendants appeal from the judgment and from an order denying their motion for a new trial.

The motion for a new trial was made upon a statement of the case; and respbndeñwobjects to the consideration of the statement, on the ground that the proposed statement and amendments thereto were not presented to the judge for settlement, or left with the clerk for the judge, within the time prescribed by the Code of Civil Procedure. The statement was prepared in proper time and amendments duly proposed, and *416 appellants gave notice to respondent that they would present the statement, with the amendments, to the judge for settlement-on the twenty-seventh day of February, 1896, which was within the ten days prescribed by the code. It appears that they were not presented to the judge on that day, but were left with the-clerk for the judge two days afterward. Afterward, on March 16th, the proposed statement and amendments came up- for settlement, and upon objection of respondent the court refused to settle the same. On the same day appellants served notice of a motion to be relieved from the order refusing to settle the statement, on the ground…

I concur, but desire to state that I concur in the conclusion on the point discussed solely because it was so held in Stonesifer v. Kilburn, supra. I think, however, that case was wrongly decided. Section 473 of the Code of Civil Procedure authorizes the court to relieve a party from a judgment, order, or other proceeding taken against him. In that case no default or other order had been taken against the moving party when the affidavits were made and the notice given by the moving parties of their application to be relieved; no objection had been made to their right to have the bill of exceptions settled, other than that the service of the notice to settle was accepted subject to objections. There was then noth *419 ing to be relieved from, and section 473 of the Code of Civil Procedure could not apply. The decision of this court was a direction to the trial court to settle the statement notwithstanding the lapse of the statutory time, because a reasonable excuse for the delay was shown, and was in conflict with numerous decisions of this court. (Wunderlin v. Cadogan, 75 Cal. 617 ; Carpenter v. Superior Court, 75 Cal. 596 ; Hodgdon v. Southern Paccific R. R. Co., 75 Cal. 650 ;…