CONCURRING OPINION OP
MR. JUSTICE DEL TORO.A majority of the justices composing this court are of the opinion, in brief, that the order appealed from should he' affirmed on the grounds on which the trial judge expressly based his decision; that is, because the time fixed by section 299 of the Code of Civil Procedure, as amended by Act No. 70 of 1911, having expired, the district court had no authority to approve the bill of exceptions and statement of facts, and they conclude that section 140 of the Code of Civil Procedure, cited by the appellant, is not applicable to' cases of this kind.
In my judgment the spirit of section 140 of our Code of Civil Procedure, which is the same as section 473 of the Code of Civil Procedure of California, is so broad and liberal and its scope has been so enlarged by explanatory jurisprudence *1134that at present it cannot be denied that in proper cases a trial judge may admit, consider and approve a statement of the case presented after the time fixed by law has expired. This by no means signifies that I hold that a period of time may be extended after it has expired. What I hold is that in proper cases, in furtherance of justice and for a good cause duly alleged and proven, a bill of exceptions or statement of facts may be allowed to be filed after the legal period has expired. This is not extending a period previously expired, but is granting a special and new period.
In the case of Sprigg v. Barner,, 118 Cal., 591, it was held that a “statement of facts” might be regarded as one of the “proceedings” referred to in section 473 of the Code of .Civil Procedure of California.
In the case of Baker v. Borello, 131 Cal., 615, it was held that a bill of exceptions or statement of the case might be amended in accordance with the provisions of section 473 of the said code.
And the doctrine that the district court is authorized in proper cases to admit a bill of exceptions after the expiration of the time fixed therefor, in accordance with said section 473, is sustained in the cases of Stonesifer v. Kilburn, 94 Cal., 33, 43, and Kaltschmidt v. Weber, 145 Cal., 596, 597.
Therefore, having reached the conclusion that the district court could entertain the motion presented to it and decide the same on its merits, two solutions are open to the Supreme Court in deciding the present appeal, viz., to remand the case to the lower court for it to exercise its discretion and decide the question brought before it, or to hear and decide the question itself. In view of all the circumstances of the case, the last course should be adopted.
In order that a district court may be justified in disregarding the provisions of section 299 of the Code of Civil Procedure as amended in 1911 and, in the exercise of the powers conferred upon it by section 140 of said code, allow the filing of a bill of exceptions after the time fixed therefor has expired, *1135it is necessary that a really just and special reason be alleged and proven. Upon examining the facts on which the Supreme Court of California based its decision in the said cases of Stonesifer v. Kilburn and Kaltschmidt v. Weber, it will be seen that tloey were cases of errors committed in the computation of the periods of time; errors which were explained to the satisfaction of the court by the evidence offered by the interested parties.
A review of the facts stated in the opinion of the majority of this court shows that this did not happen in the present case. According to the affidavit filed, the attorney for the petitioner did not become sick until July 10, 1913, the very day on which the time allowed for the filing of the bill of exceptions expired. It is not alleged in the motion that the bill of exceptions was ready for filing' on the 10th, and, if it were not, the attorney knew that it would be necessary to move for an extension of time. A motion for an extension of time is easily made and prudence would indicate the necessity of presenting the same sometime before the expiration of the period. Besides, according to the affidavit, the sickness of the attorney continued from the 10th to the 15th, from the 18th to the 21st and from the 24th to the 25th of July, 1913, and it is not understood why during the intervals between the 15th and 18th and the 21st and 24th the court was not informed of the fact of the sickness of the attorney and asked for a special extension of time for the filing of the bill of exceptions. And this situation becomes more prominent when it is considered that the last sickness of the attorney terminated on July 25 and the motion was not filed until the 30th when the attorney for the adverse party had already filed in the office of the secretary of this court a motion for the dismissal of the appéal. Considering the case, then, on its own merits, it must be concluded that the reason alleged is not sufficient to justify the prayer of the appellant and therefore, whatever the aspect in which viewed, the order appealed from is just and should be affirmed.