City of Santa Ana v. Ballard

VAN DYKE, J.

—Mandamus

to compel the respondent, a judge of the superior court of the county of Orange, to settle a statement on motion for a new trial. The application is made on notice for a peremptory writ.

The petitioner is plaintiff in an action in said court of the county of Orange, brought by said city against D. Gildmacher

et at.

to condemn a right of way for sewer purposes in said city of Santa Ana. At the close of the testimony on the trial of the cause, the court, upon request of the defendants, instructed the jury to bring in a verdict for defendants, on the ground that there was no evidence to show the necessity for taking the land sought to be condemned for the purpose mentioned, and the jury thereupon brought in a verdict as instructed.

When the proposed statement on motion for a new trial came up for settlement, the defendants objected to the settlement of said statement on the ground that said statement contained a literal transcript of the reporter’s notes taken at the trial, but it

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was not objected that it did not contain a fair and correct statement of the case, or that it was not presented in due time. Thereupon attorney for plaintiff and petitioner asked leave of the judge to amend his statement in the particular mentioned, or in any other particular in which said statement might be informal, deficient, or inaccurate, or in which it did not comply with any law or rule of practice, but the said judge declined to allow plaintiff and petitioner to so amend the statement by condensing from questions and answers to a narrative form, and refused to allow plaintiff and petitioner to amend its statement in any respect, or at all, and refused to settle said statement, and retains the same in his hands unallowed, unsettled, and unsigned.

It is the duty of the judge to settle a bill of exceptions or statement when properly presented, and, if it contains redundant or useless matter, it is his duty to strike it out or order it to be stricken out, whether the parties assent thereto or not, and to make the statement truly represent the case. (Code Civ. Proc., secs. 650-59.)