Estate of Carpenter

TEMPLE, J.

This is a contest in regard to the will of C. W. Carpenter, deceased, and is the third appeal taken to this court in the proceeding.

(In re Carpenter,

79 Cal. 382; 94 Cal. 406.) The former appeals were each taken from judgments in favor of the contestants, and upon one trial the jury failed to agree. The judgment from which this appeal was taken was for the proponents.

[584]

It will not be necessary to consider appellants’ points

seriatim,

or in fact to notice some of them in any way. A few suggestions will dispose of many of them without special discussion.

The transcript contains three bills of exceptions, or documents so entitled. The first is certified to and settled by Hon. J. G. Swinnerton, judge of the superior court, and was filed May 17, 1899. It certifies to an exception as having been taken to a ruling made on the twenty-fifth day of April, 1890, more than nine years prior to the filing of the bill of exceptions. Judge Swinnerton had ceased to be the judge of the court many years before the filing. There is no date to the judge’s certificate or to the hill, unless the filing be taken as its date.

Respondents assert that they had no knowledge of the existence of this hill of exceptions until it was filed, but this cannot be so. Ho judge is authorized to settle or certify to a bill of exceptions without the presence of, or notice to, the opposite party. It is not permissible to think, therefore, that it was a secret or

ex parte

proceeding. It is evidently a bill containing an exception such as is provided for in section 649 of the Code of Civil Procedure. A bill of exceptions under that section must be presented to the judge and settled at the time the ruling is made, and in the presence of the adverse party, and cannot properly be presented to the judge or settled at any other time. This is rendered plain by the provisions of section 651, which provides for hills of exceptions to rulings made after judgment. Exceptions to such rulings may be presented to the judge and settled at the time the ruling is made, or, as provided in section 649, within a short period afterward, upon notice. Ho notice is required if the bill is presented at the time the ruling was made, because it is presumed that the adverse party is then present; but if not so presented, then and there, the judge is not authorized to settle it save on notice. But whether settled under section 649, or section 650, it was not in time. If settled when the ruling was made, it should then have been filed as the statute directs. Tire filing would then show that the bill was properly settled so far as time is concerned.