Fountain Water Co. v. Superior Court

[649]

LORIGAN, J.

This is an application for a writ of review. The record shows that in the case of the City of Santa Rosa, plaintiff,

v.

Fountain Water Company, a corporation, and J. M. McDonald, defendants, pending in the above court, a judgment in favor of the plaintiff was entered on the 25th of April, 1901. Thereafter, defendants served and filed a notice of intention to move for a new trial, and, on the twenty-ninth day of October following, the judge of said court, upon agreement of the attorneys on both sides that said statement was correct, duly settled and certified the same, and on the same day it was filed in the office of the county clerk of said county.

The motion for a new trial upon said statement was thereafter argued and submitted to the court and taken under advisement. On the third day of February, 1902, the attorneys for the plaintiff moved the court for an order vacating and setting aside the settlement of said statement, and to correct alleged errors therein, which motion, on the 10th of March, 1902, was denied, but the court on said date set aside the order theretofore entered submitting the motion for a new trial.

Thereafter, and on the 10th of April, 1902, said motion for a new trial was resubmitted to the court and taken under advisement. On the 22d of April following, the plaintiff renewed its motion for an order vacating and setting aside the settlement of said statement, and to correct and amend it in the same particulars as specified in the similar motion of the 3d of February, 1902, which motion, on the 28th of April, 1902, the said court denied.

Afterwards, on the 12th of May, 1902, without any notice to either side, and in the absence of any application pending therefor, the court of its own motion made an order setting aside the submission of the motion for a new trial; also an order canceling and setting aside the certificate of settlement and allowance of said statement made on the 29th of October, 1901, and made a further order striking from the statement the proceedings relative to the depositions of several witnesses offered on the trial of the cause, and inserting in lieu thereof the transcript of the court reporter’s notes of the proceedings with reference to such depositions, and, as so amended, certi