Union Collection Co. v. Oliver

In Union Collection Co. v. Oliver (1912) 162 Cal. 755, the plaintiff obtained judgment in the trial court and the defendant moved for a new trial under section 473. Plaintiff sought to have the new trial motion dismissed because it was not timely, and defendant in turn obtained an order from the court relieving him, under section 473, from his failure to timely file the notice of intention to seek a new trial. ( Id. at p. 756.) Plaintiff appealed that order, contending that the defendant waived his right to move for new trial by failing to timely file and that section 473 did not authorize the court to revive the right. (Ibid.) The Supreme Court agreed and likened the situation to one in which a party failed to take an appeal within the allowable time period, where neither the Superior Court nor an appellate court has the power "under section 473, or otherwise, to revive a right of appeal where the party has for any reason failed to serve his notice of appeal within the time allowed." ( Id. at p. 758.)