Ryer v. Rio Land & Improvement Co.

LORIGAN, J.

This is an application to this court, made by the defendant, to be allowed to prove certain exceptions and have them incorporated in a bill of exceptions. The motion is presented here under the following state of facts: The cause was pending in the superior court of Solano County and judgment awarded to defendant. Plaintiff gave notice of intention to move for a new trial, and in due time a proposed statement to be used on such motion, and amendments thereto, were presented to the judge for settlement, who, on the 20th of July, 1904, settled the same and directed the statement as settled to be engrossed by the attorney for the plaintiff by September 1, 1904. Repeated orders were thereafter made by the superior judge, extending the time for engrossment until February 4, 1905, when the attorney for plaintiff delivered to said judge for certification as correct what purported to be the engrossed statement.

Before such certification was made, however, by the judge, defendant, upon notice, moved to set aside the various orders extending the time for engrossing the statement, on the ground that the superior judge had no authority to grant, them; to refuse the certification of such engrossed statement on the ground that it was not a true, and correct engrossment

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of the statement as settled by the judge' in this, that it omitted to embrace certain matters which the court had ordered inserted

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to refuse such certification on the further ground that such engrossed statement had not been served on the attorney for defendant prior to presenting it for certification as had been ordered by the court, and to dismiss all proceedings in the matter of the presentation and certification of such statement and in said action relative to and for the purpose of obtaining a new trial, on the ground that plaintiff had not used due diligence and had been guilty of undue and unreasonable delay and gross laches in presenting such statement for certification, and in the prosecution of his motion for a new trial.

The matter coming on regularly to be heard upon the various grounds urged by defendant, the objection made to the certification was overruled and the notice to dismiss denied, to which defendant excepted. Defendant then moved that the judge of said superior court incorporate and insert in said statement presented for certification the various objections and motions made by it, together with the matter’ presented on the hearing thereof, which the judge refused to do, but certified the engrossed statement as presented.