Potter v. Pigg

[708]

CHIPMAN, P. J.

Plaintiff appeals from the' judgment and from an order made after final judgment. The pleadings, findings, and judgment are identical with those in

Potter

v.

Spaulding, ante,

p. 692, [170 Pac. 1061], Plaintiff gave notice of a motion under sections 663 and 663a of the Code of Civil Procedure to vacate the judgment and to enter another and different judgment, which motion was denied. The appeal from the order appears in part to be an attempt to have reviewed an order refusing to settle his bill of exceptions. The remedy is by

mandamus

and not by appeal.

(Brode

v.

Goslin,

158 Cal. 699, 701, [112 Pac. 280].) Besides, no bill of exceptions is in the record, and hence it cannot be determined whether or not the court erred. A bill of exceptions appears in No. 1739, above referred to, brought up on the appeal of defendant United States Land Company. In that appeal, plaintiff here is respondent. Plaintiff claims the right to resort to that bill of exceptions in support of his appeal from the order denying his motion to have the judgment vacated and another and different judgment entered. Where no reference is made in the record to a bill of exceptions in a separate transcript brought up on a different appeal, and no stipulation that it may be used, we doubt whether any rule of practice would authorize the appellant to resort to such bill of exceptions in order to show that the evidence is insufficient to support the findings. However, it is not necessary to consider the point, for we have, in deciding case No. 1739, reached the conclusion that the findings are supported by the evidence, and we discover nothing in plaintiff’s appeal to change our opinion.

Where the judgment is in conflict with the findings, the remedy is by an appeal from the judgment.

(Sharp