ant was a carrier of passengers, and the plaintiff, when injured, was a passenger for hire, on its car. The care due to him from the conductor and motorman, for his safe carriage, was "the utmost care and diligence" (Civ. Code, § 2100), not merely that of a reasonably prudent man, under the particular circumstances shown. The instruction was to that extent erroneous. It is proper to say, however, that in subsequent charges the jury was elaborately and correctly instructed as to the degree of care imposed by law upon the defendant and its employés. It is not necessary to declare that this error, of itself, was sufficient to require a new trial, or that it would have been sufficiently important to have demanded a reversal if the new trial had been denied and plaintiff had appealed. Even if this instruction had been specified in the order as the only reason for granting a new trial, and we considered it correct, we would not be precluded from affirming the order if there were other substantial errors of law appearing from the record. Kauffman v. Maier, supra.

[9] Instruction 8, given at request of defendant, is as follows: "The plaintiff was a witness in his own behalf. All statements

made by him in his favor, if any, are to be given such weight as you may believe them entitled to. All statements made by him which are against his interest, if any, you must conclusively presume to be true." This was clearly wrong. A party who testifies in his own behalf does not do so at the peril of having every slip of his tongue taken as conclusively true, if his inadvertently used words cause him to appear to have made a statement which is not true, but is against his own interest in the case. It is the province of the jury to observe the witness, note his manner of speech, and consider his testimony as a whole in connection with the other evidence, and it is for it to determine therefrom whether he stated the facts as he intended and understood them to be, or whether he unintentionally used words not expressing his real meaning in any particular utterances he may have made.

The pendency of a motion by appellant to amend the conclusions of law and findings of fact would not extend his time for presenting a bill of exceptions for use on his motion for new trial.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 263-269; Dec. Dig. § 131.*] 2. TRIAL (§ 400*)-FINDINGS AMENDMENT.

Neither Code Civ. Proc. §§ 663 and 663a, authorizing a motion to vacate a judgment to make it and the conclusions of law consistent with the findings of fact, nor other statutory provisions, authorize the amendment of fact findings; the only way to change such findings, except possibly in case of clerical error, being by granting a new trial.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 949, 950; Dec. Dig. § 400.*] 3. APPEAL AND ERROR (§ 956*)-DISCRETION OF TRIAL COURT-BILL OF EXCEPTIONS.

considering applications for relief for failure to The trial court has a large discretion in present a bill of exceptions in time, and its action in granting or refusing such application will not be disturbed, in absence of abuse of doubt on the question in favor of the applidiscretion, though it should resolve any serious cant.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3810, 3891; Dec. Dig. § 956.*]

Department 1. Appeal from Superior Court, Orange County; Z. B. West, Judge.

Action by W. J. Hole against M. Takekawa. From an order denying plaintiff's motion for relief from his failure to present a bill of exceptions within the required time, plaintiff' appeals. Affirmed.

Anderson & Anderson and Watkins & Blodget, all of Los Angeles, for appellant. John W. Kemp and Kemp, Mitchell & Silberberg, all of Los Angeles, for respondent.

[10] Instructions 15 and 16 informed the ANGELLOTTI, J. This is an appeal by jury that there was no evidence tending to plaintiff from an order denying his motion prove that the appliances with which to stop for relief under section 473 of the Code of and start the car on which plaintiff was rid- Civil Procedure from the effect of his failing were defective, or were improperly ad- ure to present within the time allowed by justed, or were wanting, at the time of the law his proposed bill of exceptions for use injury. There was evidence that after the on a motion for new trial in the above-encar had slowed down somewhat, as if about titled action. The judge refused to settle to stop, it gave a sudden lurch forward, such bill on May 8, 1911, on the ground that and that this might have been caused by the the same had not been served within the sudden turning on of the electricity, or by time required by law. On June 9, 1911, the defects in the brakes. The instructions ap-motion for relief was made, the grounds pear to be an invasion of the province of thereof being "mistake, inadvertence, surthe jury. Instructions 17, 18, and 19 are prise, and excusable neglect," and this monot wholly free from fault as instructions tion was denied on June 16, 1911. upon facts, but they are not important, and we presume they will not again be given in *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The bill of exceptions on appeal from the order denying relief shows that the action

filed on said 7th day of July, 1910." No attempt was made by plaintiff's counsel to serve any proposed bill of exceptions until March 31, 1911. The only excuse for not serving the same sooner is that the particular attorney of plaintiff having the matter in charge was uncertain whether, in view of the purported amendment of one of the findings, new findings and judgment would be prepared and filed. He admits in his affidavit that he was informed on March 2, 1911, by Mr. Noyes, an attorney for defendant, at the time of the service of the notice, that defendant would not file new findings and judgment. Seasonable objection was made by defendant to the consideration of such proposed bill.

was one for the specific performance of an entered on February 8, 1911; and that the alleged contract for the sale of real estate. | conclusions of law and judgment in said The action was tried May 31, 1910. Decision action "were and are unchanged as when in writing (findings of fact and conclusions of law) was filed, and judgment that plaintiff take nothing was given and entered, early in July, 1910, and plaintiff was given notice of the entry of judgment, together with a copy of the findings, as early as July 15, 1910. Within ten days after such notice, plaintiff served and filed his notice of intention to move for a new trial. Plaintiff was desirous that certain of the findings of fact be amended on motion, and various stipulations were made extending the time of plaintiff to prepare and serve his bill of exceptions in order that he might defer such serving and filing until such motion could be made and determined. Finally, in November, 1910, stipulation was made by the attorneys for both parties "that the motion to amend or change the findings of fact and conclusions of law will be heard on the 10th day of November, 1910, and the time to appeal or make motion for new trial will immediately commence on the day on which the order is made on such motion; that this stipulation hereby sets aside and abrogates any and all stipulations heretofore made in regard thereto." No stipulation or order purporting to extend plaintiff's time was subsequently made. The motion to amend was heard, and on December 16, 1910, the court made and filed its order, which was signed by the judge, purporting to strike out a certain finding of fact as to the value of the land at the time of the signing of the alleged contract of sale, and the increase of value thereafter, and to substitute in lieu thereof a new one in regard to the same matters, but showing a lesser value and a smaller increase in value, and adjudging that in all other respects the findings stand as they were originally made and filed. A copy of this order was sent to and received by certain of the attorneys of record for plaintiff on December 17, 1910. On one side it is claimed, and on the other it is denied, that there were subsequently certain conversations between attorneys for the respective parties as to the necessity of preparing and having filed new findings and a new judgment, in which one of the attorneys for defendant stated that he proposed to so do. On this proposition, however, there is a sufficient conflict in the evidence to make the case solely one for the trial court. On March 2, 1911, defendant's attorneys served on the attorneys for plaintiff a formal written notice to the effect that findings of fact, conclusions of law, and judgment for defendant were duly and regularly signed and made on July 6, 1910, and filed and entered by the clerk on July 7, 1910; that the court, in pursuance of the motion of plaintiff, on December 16, 1910, made and signed an amendment to the findings of fact; and that such amendment

[1, 2] Except in so far as the time to serve the proposed bill of exceptions on motion for a new trial was extended by reason of the stipulations of the parties, plaintiff's time expired with the expiration of ten days from the date of the service of his notice of intention to move for a new trial. Code Civ. Proc. subd. 2 of section 659, and section 650. The mere pendency of the motion to amend, subsequently made by plaintiff, could not extend the time. And in so far as plaintiff's motion was one to amend or change any finding of fact, it was entirely unauthorized by any provision of law, and could not legally be granted. Sections 663 and 663a of the Code of Civil Procedure authorize no such procedure. The language of these sections is entirely free from ambiguity and leaves no room for doubt as to what is authorized thereby. As applied to a judgment based upon findings of fact made by a trial court, the sections simply authorize a motion to vacate the judgment to make it and the conclusions of law consistent with and supported by the findings of fact, and do not authorize any change in any finding of fact. "Section 663 of the Code of Civil Procedure authorizes simply the substitution of the judgment that should have been given as a matter of law upon the findings of fact in a case where the judgment already given is an incorrect conclusion from such findings. The court cannot on such a motion in any way change any finding of fact. The sole remedy in the trial court of a party who is aggrieved by any finding of fact is a motion for a new trial." Dahlberg v. Girsch, 157 Cal. 324, 327, 107 Pac. 616, 619. The only mode under our system by which findings of fact may be disturbed by the trial court after they have been filed and judgment has been entered thereon, "except perhaps in respect of a mere clerical error or misprision," is by the granting of a new trial. Hawxhurst v. Rathgeb, 119 Cal. 531, 51 Pac. 846, 63 Am. St. Rep. 142; Los Angeles v. Lankershim, 100 Cal. 532, 35 Pac. 153, 556; Pico v.

der of December 16, 1911, purporting to the judge would so desire. No reason at change one of the findings of fact, was there- all is apparent why plaintiff's attorney might fore ineffectual for any purpose. It, of fairly assume that the time to present plaincourse, in no way affected the judgment tiff's proposed bill of exceptions, if it had not given and entered long prior thereto, and no already long since expired, would not cernew findings or judgment could be legally tainly expire with the expiration of ten days filed or made. from March 2, 1911, in the absence of further stipulation or an order of extension,

*For other cases see same topic aud section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

SLOSS, J. This is an action of ejectment, | been run due east and west. The defendant, brought to recover possession of a triangular owner of lot 4, had, however, occupied to a strip of land situate in the county of San line beginning at the easterly end of the true Luis Obispo. The complaint describes the southern boundary of his lot, and running premises as part of lot 3 of section 35, in thence south 76 degrees 13 minutes west. township 12 north, range 35 west, San Ber- This line, together with the due east and nardino Base and Meridian, and sets forth a west line, and the line which bounded both particular description by metes and bounds. lots 3 and 4 to the west, inclosed a triangular The answer denies plaintiff's ownership as strip containing about four acres, which is well as his right of possession, and asserts the land in controversy. It is not disputed ownership, right of possession, and actual that Donovan, the defendant, and his predepossession, to be in the defendant. It further cessors in interest have always been in posalleges as a separate defense that lots 3 and session of this triangle, and that they have 4 of section 35 are contiguous lots, their com- farmed it, down to its southerly line, as a mon boundary being the northerly line of lot part of lot 4, there being no fence to separate 3 and the southerly line of lot 4, that the it from said lot 4. Nor is there any controverexact location of the boundary is and has sy over the fact that upon this southerly line been uncertain and unknown to the owners of there has been a substantial fence, at least lots 3 and 4, and that the southerly line of since 1888. One witness testified that there the strip in controversy has at all times been had been a fence upon that line in 1881, taken and considered by the owners of the while another stated that from 1884 to 1887 respective lots to be the northerly line of lot there was no fence, but that there were stones, which had supported the joints of an old rail fence, along the line occupied by the fence now standing.

At

3. The plaintiff claims a part of lot 3 by mesne conveyances from James Brennan, to whom a patent was issued by the Uuited States on December 1, 1876. The defendant The defendant acquired lot 4 in 1888. claims lot 4 in like manner under Florentine that time C. R. Callender was the owner of Najar, to whom patent issued on August 20, lot 3, having purchased it in 1887 of Cor1881. It is further alleged that prior to the nelius Donovan. In the same year the deissuance of the patent to Brennan, and ever fendant constructed the fence last mentioned. since, there has been a permanent and sub- He testified that, before he began the constantial fence constructed along the southerly struction, he had told Callender that he was line of the disputed strip, and that said fence going to put a fence on the line of the old has been maintained, recognized, and ac- rail fence; that he had said to Callender: cepted by the owners of lot 3 and lot 4 as the "You own that land there that you have got true boundary line between their respective of Con Donovan; you ought to put up half tracts. The owners of lot 4 have at all times that fence." Callender replied that he was occupied, used, and cultivated the strip to very busy, but, "If you feel like doing it, you the fence, and the owners of lot 3 have occu- go ahead and put up the fence, and I will pied the land to the south of said fence. pay for it." The westerly part of lot 3 was, The answer also alleges that in 1888 the in 1891, conveyed by C. R. Callender to G. W. defendant was the owner of lot 4 and one Callender by a deed which described the Callender the owner of lot 3; that at said piece conveyed by metes and bounds in such time the fence was old and broken down, manner as to make its northerly boundary and defendant, with Callender's consent, con- run along the southerly line of the strip in structed a good and substantial fence along dispute. Schwab, the plaintiff, acquired lot said line, and it was agreed between said 3, except the portion theretofore conveyed to Callender and the defendant that said fence G. W. Callender, by deed dated September 7, should be considered the true and correct 1898. The evidence is ample to sustain the boundary line. Such fence has ever since conclusion that Schwab, at the time he been maintained as the true, correct, and bought, believed the fence line to be the true agreed boundary between lots 3 and 4. The northern boundary of his line. That C. R. plaintiff has never been in possession of any Callender had entertained the same belief is land lying north of the fence. The findings indicated by the manner in which he dewere in favor of the defendant on all these scribed the land conveyed by him to G. W. issues. Judgment followed, declaring that Callender. Schwab first discovered that the plaintiff is not entitled to the possession of fence was not on the true line about 2 the land in controversy. Plaintiff appeals years before the trial, when, having heard from the judgment and from an order deny-something that raised a doubt in his mind, ing his motion for a new trial. he had a survey made. Even then he made no claim to the land north of the fence until he commenced this action. The evidence, too, was ample to warrant the court in believing that Donovan and his predecessors in interest had always thought that lot 4 extended southerly to the fence line, and had

The various findings regarding the ownership of the strip, and the fixing of the fence line as the boundary of the two lots, are assailed as unsupported by the evidence.

It appears that the dividing line between the two lots, if marked on the ground accord

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes