Johnson v. Works

CONREY, P. J.

The petitioner Harry G. Johnson is the plaintiff in a certain action against one Ml A. Copps in the superior court of Los Angeles County, in which action the plaintiff seeks to recover a share of commissions alleged to have been earned by plaintiff and defendant on account of services in selling certain real property. . Upon issues presented by the pleadings that action was tried before the respondent herein as judge of said superior court, and judgment was entered in favor of the defendant. The plaintiff duly served and filed a notice of intention to move for a new trial upon the ground that the evidence was insufficient to justify the decision, and upon other grounds stated. Within due time the plaintiff served and presented for settlement a proposed statement on the motion for a new trial and the said proposed statement, with the defendant’s proposed amendments thereto, came before the respondent for settlement. The proposed statement purports to self forth all of the evidence and proceedings at the trial. By his proposed amendments defendant asks that portions of the proposed statement be stricken out and other testimony substituted therefor.

The proceedings at the trial were taken down by an official reporter but no transcript thereof has been made. The petitioner alleges that when the statement and amendments came before the respondent for settlement, respondent refused to make any settlement thereof. Respondent in his return to the alternative writ issued herein sets forth facts showing that the attorneys for plaintiff and defendant failed to agree with respect to said proposed amendments; or, in other words, that the plaintiff refused to accept said amendments. Respondent says that neither the statement as proposed by plaintiff nor the proposed amendments nor the two taken together contain

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a true or fair statement of the evidence necessary to explain plaintiff’s specifications attached to his notice of intention to move for a new trial; that there was other competent and relevant evidence upon said matters. Respondent denies that he has refused to settle the statement of the case, but in substance declines to do so unless a transcript is furnished to him of so much of the testimony of the witnesses as is necessary to explain the specifications attached to plaintiff’s motion for a new trial where the proposed statement of plaintiff conflicts with the proposed amendments of the defendant.