Gamache v. Budd

VAN DYKE, J.

Mandamus

to compel the respondent, as judge of the superior court of the county of San Joaquin, to settle a bill of exceptions.

In the petition for the writ it is alleged that in an action wherein the petitioner was plaintiff and the south school district of San Joaquin county and others were defendants, tried before the respondent, a judge of the superior court of said county of San Joaquin, a decree was therein rendered in favor of said defendants and against said plaintiff, the petitioner herein, on the third day of June, 1899; that no notice of the filing of the decision therein was served upon the plaintiff or his attorneys, and that on the 24th day of June, 1899, said plaintiff prepared and served his proposed hill of exceptions therein upon the attorneys of said defendants in said cause; that amendments to said hill of exceptions were proposed and served upon the petitioner, the plaintiff in said cause, on the third day of July, 1899, and it is alleged that thereafter, on the eighth day of July, 1899, the petitioner handed said proposed original hill of exceptions, together with proposed amendments

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thereto, to the clerk of said superior court to be delivered by him to said judge who tried the cause; that said judge having failed to give notice of the time and place for settling the said statement, the petitioner’s attorney called his attention to the fact, and that he thereupon fixed October 21, 1899, as the time for the settlement of said bill of exceptions,. and upon that day the said judge refused to settle or certify: any bill of exceptions therein, upon the ground of delay in presenting the same to the court.

In the answer of the respondent it is denied that the bill of exceptions and amendments were presented to the clerk of said court to be handed to respondent as such judge, or at all, prior to October 16, 1899, or that said proposed bill of exceptions and amendments were ever presented to respondent as such judge prior to the 21st of October, 1899; and for the reason that said bill of exceptions and amendments were not presented as required by law, or at all, prior to the time specified, and because no proper showing was made why they were not presented before, the respondent refused to settle the same.