Pereira v. City Savings Bank

[46]

GRAY, C.

This is an appeal from an order denying a new trial. For a reversal of the order the appellant urges, first, irregularity in the proceedings of the court in this, that the judge of the court, while the jury were deliberating as to their verdict, sent to them by the sheriff the verdict in favor of plaintiff, fully prepared except the signature of the foreman, which was finally returned by them as their verdict in the case. Appellant also directs attention to several alleged errors of the court in ruling upon objections to evidence and in instructions to the jury at the trial; and its brief concludes with an attack upon the verdict as not being warranted by the evidence. To all this the respondent answers that there is no proper record before this court properly presenting any of these questions. This objection of respondent seems to be well founded. It does not appear from the record that any bill of exceptions, or statement of the case settled and signed by the judge who tried the case, or by any other judge, or concurred in by stipulation of the parties, was presented to the court upon the hearing of the motion for new trial; nor does it appear that any such bill of exceptions or statement was in existence at that time. R'either does it appear that the motion for new trial was to be made on the minutes of the court. There is in the transcript, beginning with folio 47, a purported copy of a document headed, “Engrossed Bill of Exceptions,” evidently intended as a bill of exceptions or statement of what took place on the hearing of the motion for new trial. Included in this purported statement, and beginning at folio 128 of the transcript and ending at folio 236, is a purported copy of another document headed, “Bill of Exceptions,” purporting to be a bill of exceptions to be used on motion for a new trial, and purporting to b'e signed, not by the judge who tried the case (see Code Civ. Proc., sec. 650), but by the judge who heard the motion for a new trial, and purporting to have been filed September 28, 1897, some two months after the order appealed from was entered in the minutes of the court. The said “engrossed bill of exceptions” which contains the said bill of exceptions to be used on motion for new trial does not appear to have been signed or settled at all. The clerk’s certificate to the transcript says nothing as to any bill of exceptions. (Code Civ. Proc., sees. 952, 953.)