Merced Bank v. Price

THE COURT.

This is a motion for an order permitting appellants to file, as a part of the transcript and record on appeal herein, certain specifications of the particulars in which it is claimed that the findings of the trial court are not sustained by the evidence, and certain specifications of errors of law, which were not included in the engrossed bill of exceptions as certified by the trial judge. It is made to appear by an order of the trial judge, based on the motion of appellants, that such specifications were in fact allowed.and settled by the judge as a part of the bill of exceptions, and were intended and believed by him to be included in and to constitute a part of the engrossed bill signed and certified by him, but that they were by accident and inadvertence omitted from such engrossed bill.

The appeal before us is one from an order denying appellants’ motion for a new trial. The bill of exceptions was ordered settled on September 21, 1906, and the engrossed bill of exceptions was signed and certified by the judge on November 3, 1906, and filed as a record of the court. The order denying the motion for a new trial was made on January 4, 1907, and the appeal from such order to this court was perfected on March 1, 1907. Nd proceeding was instituted in the superior court for the correction or amendment of said engrossed bill by inserting said specifications until more than six months had elapsed from the date of certification thereof by the judge. On May 14, 1907, eleven days after the expiration of such six months, appellants gave notice of a motion, to be made May 27, 1907, for an order authenticating said specifications as the specifications allowed and settled by the court as a part of the bill of exceptions on the twenty-first day of September, 1906, and as intended and believed by the court to be included in and to constitute a part of the engrossed bill signed on November 3, 1906, and the court, after hearing said motion, made the order asked on June 10, 1907. A certified copy of such order, attached to a certified copy of such specifications, has been produced in this court.

[699]

1. In our judgment, at least two of the objections made to the granting of the motion are good.

The proceeding instituted by the motion for authentication, etc., in the trial court was one for the amendment of the