Lesure v. Hutton

WORKS, J.

The defendants appeal from a judgment for plaintiff. Appellants complain of certain alleged errors of law occurring at the trial, but respondent contends that there is before us no properly authenticated record upon which we may base a consideration of the questions appellants seek to present. The appeal was taken under the original as distinguished from what is known as the alternative method of appeal.

The printed transcript on appeal contains a number of pages of matter under the heading, “Statement on Motion for a New Trial,” but there is nothing in the record to show that the statement was ever settled by the trial judge. There is at the end of the transcript the usual certificate of counsel, taking the place of a certificate of the clerk, to the effect that “the foregoing transcript is correct and contains a true copy” of certain named documents, including the statement mentioned above, “all as the same are on file or of record in the office” of the clerk of the trial court, in the action.

[1]

A statement on motion for a new trial, like a bill of exceptions, is incomplete and ineffective until it has been allowed and settled by the judge (Code Civ. Proc., sec. 653;

People

v.

Crane,

60 Cal. 279;

Witter

v.

Andrews,

122 Cal. 1 [54 Pac. 276];

Sauer

v.

Eagle Brewing Co.,

3 Cal. App. 127 [84 Pac. 425]). A bill of exceptions, so called, is not a bill of exceptions before settlement, nor is a document styled a statement on motion for a new trial really such a statement before settlement. The character of such documents is truly reflected in the parlance of the practice, for, before settlement they are called respectively

proposed

bills of exceptions and

proposed

statements; and, until settlement, they are but the