Fighiera v. Dewhirst

CONREY, P. J.

This is a proceeding in

mandamus

to require the respondent, as judge of the superior court in and for the county of San Bernardino, to settle a bill of exceptions in an action wherein the petitioners were plaintiffs and one William F. Radis was defendant. After the entry of judgment in that action the plaintiffs in due time served and filed their notice of intention to move for a new trial, and-later served and filed notice that said motion would be made ■ on the nineteenth day of June, at 2 o’clock P. M. At that time, the attorney for plaintiffs not appearing and the attorney for defendant' being present, the motion was denied. Thereafter, on July 27, 1916, the plaintiffs served on the defendant a proposed bill of exceptions. On August 2d the defendant served upon plaintiffs numerous amendments to the proposed bill of exceptions; specifying, however, together therewith his objections to the signing, settlement, and allowance of the bill and insisting that his proposed amendments were to be considered only in the event that the court should have first overruled said prior objections. These objections set forth, in addition to the facts above noted, certain other facts, including the claimed fact that the plaintiffs had actual notice of the denial of their motion for a new trial on the date thereof, to wit, June 19,1916. It is thus made to appear (said the defendant) that since no extension of time had been granted, the proposed bill of exceptions was served and filed after expiration of the time allowed by law.

The proposed bill and amendments having been delivered to the clerk and by him to the judge, the court designated August 28, 1916, as the time for settling the bill of exceptions, and the attorneys for the respective parties were notified thereof. At the time appointed those attorneys appeared before the judge and the attorney for defendant presented his objections, including those above noted, to the settlement

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of any bill of exceptions. The record does not show any definite ruling by the court upon those objections, but the hearing on that day resulted in a minute order by the court in that case as follows: "This being the time heretofore continued to for further hearing on settlement of bill of exceptions, all parties present by and with their respective counsel. Argument is heard and the court at this time disallows the bill of exceptions for the reason that same does not conform to the record.” The petition for the writ in this proceeding and the respondent’s answer thereto, as well as the briefs of counsel, indicate that a controversy arose between the plaintiffs’ attorney and the judge respecting the correctness of the bill as proposed by plaintiffs’ attorney, and that the judge was insisting that a better and more correct bill be proposed before he would make any order settling the same. Without entering into a discussion, which would necessarily be of considerable length, as to the merits of this controversy, it will be sufficient to say that the situation was not materially different from that shown in