Galvin v. Hunt

SHAW, J.

This is a proceeding in

mandamus

to compel the respondent to sign a bill of exceptions in his official capacity as judge of the superior court of the city and county of San Francisco.

It is alleged in the petition that the bill of exceptions, after having been duly settled by the respondent, was by him or

[104]

dered engrossed, that petitioner thereupon engrossed the bill and presented the same to respondent for his certificate and signature, whereupon he refused to sign or certify it.

The petitioner, who was the plaintiff in the suit of Galvin

v.

Fannen, served on the defendant, Fannen, a draft of his proposed bill of exceptions. Fannen in due time served on Galvin his proposed amendments thereto. The proposed bill and amendments were then presented to the judge and by him settled, a number of the amendments being allowed, and this made it necessary to engross the bill for certification and signature. The petitioner was directed to engross it, . accordingly, and was allowed ten days to do so. Within that time he presented to the respondent for signature the document which he claims was the engrossed bill. The respondent refused to sign the same, on the ground that it was not properly or correctly engrossed.

Among the amendments proposed and allowed were two calling for the insertion of certain documents which had once been in possession of Galvin, or his attorney, but which, through the carelessness of one of their employees, had been lost. The only existing copies of these documents were in possession of the attorney of the defendant, Fannen, and said attorney refused to allow Galvin or his attorney to see these copies in engrossing the bill, or to give them the opportunity to have copies thereof made for that purpose. In the proposed amendments these documents were not set out in full, but were merely referred to therein by description. In the engrossed bill they were omitted and in lieu thereof the descriptions contained in the proposed amendments were set out. In excuse for this omission it was stated therein that the plaintiff was unable to insert them because he had not been furnished with copies. The respondent, in his answer to the petition herein, alleges that the petitioner did have copies of the lost documents and could have inserted them, but upon the hearing before this court, it was shown by affidavit, and virtually admitted, that the only copies the petitioner ever possessed were the originals which had been lost before the settlement of the bill. One of the objections to the engrossed bill was the omission of these documents.