The opinion
TEMPLE, J., concurring.
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 ; Bunnel v. Stockton, 83 Cal. 320 ; Jue Fook Sam v. Lord, 83 Cal. 162 .)
In fact the application in Stonesifer v. Kilburn, supra, was simply- to prevent the party .opposing the motion from successfully urging the objection that he had lost his right by failing to move in time. Previously this court had held that, if the time was allowed to lapse, the court could not then grant further time and could not settle the statement. The Stonesifer case simply reverses these rulings and holds that under such circumstances the court can, and if the delay is excused will, settle the statement.
Hearing in Bank denied.
Beatty, C. J., dissented from the order denying a hearing in Bank.