Crooks v. Superior Court

TEMPLE, J.

This is an application for a mandate to compel respondent to settle and certify a bill of exceptions.

From the petition, which, for the purposes of the hearing in this court, counsel for respondent admits to be true, we learn that petitioner was appointed guardian of the person and estate of his daughter, Annie T. Crooks, and duly qualified as such guardian, and as such took charge of the property of his ward. Something more than one year thereafter the ward was adjudged to have been restored to competency, and petitioner filed his account as guardian for settlement. The ward filed certain objections to the final account. On the 9th of October the matter was tried before respondent as superior judge. Upon the trial, evidence both oral and documentary was submitted, and thereafter, on the twenty-eighth day of February, 1901, the court rendered its decision, and on the fifth day of March, 1901, caused an order to be filed settling said final account. In due time the petitioner took an appeal from the order and prepared and served his proposed bill of exceptions, to which said Annie T. Crooks proposed certain amendments, one of which was, that a certain book of accounts which had been produced by petitioner at the hearing, on his cross-examination by said Annie T. Crooks, and which was then by her counsel placed in evidence, should be inserted.

This proposed amendment was allowed by respondent, and the bill settled and ordered engrossed as settled. Upon an attempt to engross the bill as directed, it was found that the pages of the book containing the account had been torn out and completely destroyed. Petitioner asserts that the destruction of this evidence was without his knowledge or consent, and was, he verily believes, done by Annie T. Crooks. He was therefore entirely unable to comply with the order made by respondent directing the engrossment of the bill.

■ The respondent, however, refuses to finally settle and certify the bill without the pages of the book referred to. He declines to insert anything in the bill as a substitute for the

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pages from the account-book. His attorney, here, who is also attorney for -Annie T. Crooks, says it is impossible to make any substitute for the book. The ward had no evidence whatever, except such as could be got from the guardian himself. The guardian testified that he made all the expenditures charged in his account. The book was of such extraordinary character that upon its face it showed a cooked-up account, and in many respects contradicted the testimony the guardian had given. He says it justified the court in refusing to place any confidence whatever in the testimony of the guardian, and demonstrated that he was dealing unfairly with his ward. To deprive the ward of this evidence is to leave the testimony of the guardian uncontradicted, and will inevitably necessitate a judgment in his favor. The items of the account and the manner and nature of the entries, it is contended, cannot be fully shown by any synopsis of its contents, and any attempt to characterize the evidence would' be to state conclusions and not the evidence.