Foerst v. Kelso

ANGELLOTTI, J.

In February, 1901, plaintiff filed in the superior court of the city and county of San Francisco, an amended complaint stating a cause of action for damages. In March, 1901, defendant filed his answer. The cause was tried with a jury, which, on December 12, 1905, rendered its verdict in favor of plaintiff for the sum of seven thousand dollars. Judgment was entered in accord with said verdict on December 14, 1905, and the judgment-roll in said action was made up and certified by the clerk on the same day.

[437]

Within ten days after the rendition of such verdict, defendant served and filed his notice of intention to 'move for a new trial on some or all of the grounds specified in section 657 of the Code of Civil Procedure, stating in such notice that the motion would be made upon a bill of exceptions. Within the requisite time, his attorney served on plaintiff’s attorneys his proposed bill of exceptions, and subsequently and in due time, plaintiff’s attorneys served on defendant’s attorney amendments to said proposed bill of exceptions. At this stage, neither said proposed bill of exceptions nor said proposed amendments having as yet been filed among the papers of the case, and the same apparently being in the possession of the attorney of defendant, and no bill of exceptions having been settled and said motion for a new trial being still pending, came the great conflagration of April 18 and 19, 1906, by which all of the records and files in said cause, and also all papers relating thereto in the office of said attorney for defendant, including said proposed bill and proposed amendments, and the shorthand reporter’s transcript of the proceedings which such attorney had, were destroyed. Attorney for defendant, in his affidavit made November 9, 1910, which is not contradicted, states that the shorthand reporter who took down in shorthand the proceedings in said cause is dead, and that he believes it impossible to obtain another transcript of such proceedings, and that the evidence taken at the trial has passed from his memory and that he cannot now state even the substance thereof. On November 3, 1910, plaintiff made her application to said superior court, in accord with the provisions of the act of June 16, 1906 (Stats. 1906, Ex. Sess., p. 73), for the restoration'of court records “lost, injured or destroyed by conflagration or other public calamity, ’ ’ for an order reciting the substance and effect of the judgment-roll in said action. After proper proceedings had, this application came on for hearing November 18, 1910. It was admitted that the judgment-roll as set forth in the application to restore such records, was correctly set forth, with the exception of a minor detail, which was corrected. The affidavit of defendant’s attorney, the material facts stated in which have already been set forth, was read in evidence. Defendant’s attorney claimed, both in his affidavit and at sush hearing, that either the motion for a new trial should