Bell v. Fee Title Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 439 Complaint to quiet title was filed herein by respondent, claiming to own the property in controversy by title acquired through a deed from the county tax collector. Issue was joined and after trial before the court judgment was rendered in favor of the plaintiff. A motion for a new trial was presented and denied, and this appeal was taken upon a document which appellant contends is a bill of exceptions, although it is entitled "Statement of the Case."

Respondent insists that it is in no sense a bill of exceptions, and that its informality, and the irregularity of attendant proceedings, render it ineffectual; that it is nothing more than a statement of the case, that it is not signed, and that it must therefore be disregarded, and the decree affirmed. [1] Were we confronted merely with the distinction between a bill of exceptions and a statement of the case, such objection would not merit serious consideration, since when the ends of justice require it those terms are regarded as synonymous. (Dennis v. Gordon, 163 Cal. 427 [125 P. 1063].) *Page 440

Following the judgment-roll in this record appears the statement: "That the following is a complete statement of the evidence given, and of all the proceedings had on the said trial." The motion for new trial was based upon the same statement which is brought here as a bill of exceptions or statement of the case, and it concludes as follows:

"And now comes the defendant, Fee Title Company, and asks that this, its statement, on motion to set aside the decision and judgment herein rendered, and grant a new trial — be settled, allowed and approved, and that said decision and judgment be vacated and set aside and a new trial granted on the grounds specified.

___________________,

"Attorney for Fee Title Company, Defendant.

"O. K. __________,

"Attorney for Plaintiff.

"The above statement is hereby settled, allowed and approved as a true and correct statement of the case.

"(Signed) LESLIE R. HEWITT, "Judge."

[2] There is nothing to indicate that a draft of the document submitted as a bill of exceptions was served upon the appellee or his counsel, "but as no objection on this ground was taken in the court below, and as the statement is certified by the judge to be correct, it will be presumed that it was properly served, in the absence of anything in the record showing to the contrary." (Young v. Rosenbaum, 39 Cal. 646, 655; Sullivan v.Wallace, 73 Cal. 307 [14 P. 789].)