The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1897-01-16
HUMOR FROM THE
SUPREME BENCH
Pleasantly in an Opinion
Written by Justice
Temple.
Attorney Spencer Of LASER
County Won an Interesting
Appeal Case.
Jus tees Mcfarland and Henshaw Join
in a Learned Discussion of the
Game of Frog"

enComD ped IN that som Der repository
known as the Reports of the California
Supreme Court. 1t happened yesterday
that a sample of this feeting spirit of
pleasantly was developed from one of
those formidable tones during the pro-
ceedings in Judge Stacks court, while an
application to strike out big cost bill was
on hearing. The court and all the jurors
enjoyed the joke hugely. General w. Il.
L. Barnes, who happened to be present,
seemed to be as happy as if listening to or
telling good story at Press Club jinks.
John A. Wall objected to the entire cost
bill in the suit of Kennedy and others
against the San Francisco and San Mateo
Construction Company and Others. To
support his position he read an affidavit
to the effect that he had given notice of
the motion to strike out, and further tn at
the proposed cost bill had not been "de-
livered" within the five days allowed by
law.
Attorney Arson Hilton, speaking on be-
half of the cost bill instead of reply ing
to Mr.. Walls five-day proposition, made
a counter attack by saying that M. Wall s
motion to strike out was not made in the
ten days allowed by law, but that only
notice of such motion had been hled,
though the actual motion to strike out
came much later and therefore too late to
help Mr.. Wall.
Judge Slack said he was willing to hear
argument and as Mr.. Wall did not seem
to think that the assault on his PROPOSE.
ton was really serious Mr.. Hilton said he
would read from a decision made by the
Supreme Court of California, the opinion
being written by the learned Justice Jack
son Temple and concurred in by the
learned Justices T. B. Mcfarland and f.
w. Henshaw, the same being reported in
volume Al OF the Pacific Reporter, page
1885.
The original suit was begun by F. ".
Spencer against j. G. Leonard in the JUS
tees Court at SusanviIle, Lassen County.
Spencer obtained judgment by default,
and Justice James Branham gave notice
that he would, thirteen days after the
entry of default, take up notice of an
application made by Leonard for the set
ting aside OF the default. Spencer, on
the date of the proposed hearing, applied
to Judge w. I. Masten OF the Superior
Court of Lassen County for writ of pro-
hibition to prevent Justice Branham from
further considering the case on the ground
that he had lost jurisdiction, more than
ten days having expired after the default
was entered. The Superior Court denied
the writ and Spencer appeal to the Su-
preme Court. That august tribunal over
ruled both Judge Masten and Justice
Branham and held that Spencer was
right. Spencer & Raker and f. G. Spencer
appeared for the appellant, Goodwin &
Goodwin and J. e. Pardee for the re-
spondent.
Mr.. hilton read from the report of JUS
tice TEN ple's opinion as follows:
The written notice was handed to the Justice
of the Peace on Monday evening, and the
Justice was told to file it. He was not asked
site party were not notified of any hearing
and were not present. Indeed, respondents
counsel seem to admit that the paper was
handed to the Justice at time when no action
cou d be expected. They say that Justice
court is wherever you find the Justice, and
that attorneys, like other human beings, are
not above the customs of q country, and 1t is
at least awkward. if not downright impoli te-
ness, to stop the deal in q game of frog and
distract the attention of the swampers' from
the contest of the widow by injecting into
attorney representing the defendant in Doe VS..
Roe, respectfully move etcl How much
better to respect the rig hts. of ALL and when
the court is slipping the fruits OF well-earned
victory (his own, some one elses) quietly
hand him the paper, with statement of its
contents, and Il request that it be filed; and if
the victories have not been SO frequent but
that he knows what he Is asked for, and pro-
ceeds thereafter to act upon the request, it
would seem that as much had been accom-
plished as could have been by the most formal
viva v0ce notion
Justice Temple, after making this quo
tation from the brief on file in the case,
adds:
Although not able to determine from the
language of the learned counsel what his
Honor was then doing understand the state
ment admission that he was not then
engaged in judicial work and was probably
not in condition to do SO. At all events no
present action was asked and none could have
been had in the absence of the opposite party
without notice to him.
After disposing of the incidents of the
tfrog" game Justice Temple deals with
the legal question in these words:
The question then is, When a motion must
be made upon notice within a given period
can a party extend his own time by fling q
written motion within the period and giving
notice of hearing of the motion after the
time has expired? To ask the question is to
answer it.
Applica tons for relief must be by motion,
and 'maklng and not filing written ap-
plication for such rule or order is not
sufficient o. The attention Of The he court
moved to grant it'' People VS.. All
Sam, Al Cal, 645. Here, although the atten-
ton of the court may have been called tc it,
no present action was requested. If the mo-
ton had been made, had the court continued
the hearing for argument or for further evil
dence, 1t would not have lost jurisdiction. for
in such case the application would have been
made IN time. Judgment and order reversed.
Judge Slack, as was his duty, only
laughed at the humorous comments of
the Supreme Court. and, after looking
over the papers moment, remarked tn at
it did not appear by any of the pleadings
that Mr.. Hilton had served his cost bill,
and that Mr.. Walls affidavit was not
material because it simply alleged that
the cost bill was not delivered" in time.
If it was intended to alIege that it was
not "served" in time, the word "served"
ought to be used. Since the attorneys
were insisting on technicalities it was
necessary that the rules should be en-
forced in all their strictness. The lawyers
were given week to settle their differ
ences or to amend their pleadings accord
ing as they were disposed.