Wetherbee v. Carroll

California Supreme Court Oct 15, 1867Published

Before: Sawyer

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Holding. The court held that it cannot review an order on appeal when the record is not prepared in accordance with the specific modes prescribed by the Practice Act, particularly when the record was created ex parte without the respondent's participation.

Issues

Whether a record on appeal from an order not made upon affidavits alone can be presented via a bill of exceptions prepared ex parte.
Whether a stipulation authenticating a transcript as a true copy of the record below precludes a respondent from challenging the legal sufficiency of the record's preparation.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The exception, under the Practice Act, should have been presented in a statement, in the settlement of which the respondent was entitled to participate.”

Synopsis

Record on. Appeal from Judgment.—On appeal from a judgment, without a statement, nothing belongs to the record except the judgment roll, and no question arising outside the roll can be considered.

Idem.—The mode of presenting questions not arising on the judgment roll, for review on appeal, is by a statement on appeal.

Exceptions Taken at Trial.—Exceptions taken and settled at the trial, as provided for in sections one hundred and eighty-eight, one hundred and eighty-nine, and one hundred and ninety of the Practice Act, form part of the judgment roll, and constitute part of the record on appeal from the judgment, on the roll alone. These are the only exceptions or bills of exceptions known to the Practice Act, except so far as a ruling and exception to it, presented by a statement made in the mode prescribed in that Act, may be regarded as a bill of exceptions.

Idem.—At the settlement of an exception taken during the progress of the trial, both parties have the same opportunity for securing its correct presentation, as is afforded in settling a statement. The policy of the law is, that wherever there is a possibility that a partial record for presenting a point may be made, both parties shall have an opportunity to take part in settling it.

Appeal from Order.—When an appeal from an order made on affidavits alone is taken, the appeal may be heard upon a record consisting of the order appealed from, and said affidavits identified in the mode prescribed by law.

Idem.—When an appeal is from an order based on evidence alone, other than affidavits, or in connection with affidavits, the record on such appeal consists of an order appealed from, and a statement prepared and settled as in case of statements on appeal from judgments, containing so much of said evidence and affidavits as is necessary to present the points relied on.

Grounds for New Trial.—Certain grotmds for new trial are required to be presented by affidavit, others by a statement; while the pleadings, depositions, documentary evidence on file, and the minutes of the Court, may be read on the hearing of the motion.

The Record on Appeal from Order Granting or Refusing a New Trial.— The record on appeal from an order granting or refusing a new trial consists of the affidavits and statement upon which the motion was made, with such pleadings, depositions and minutes as were read and referred to.on the hearing, identified by the certificate of the Judge.

Record on Appeal from Order.—A record on appeal from an order made subsequent to final judgment, based on affidavits and other evidence, which does not contain a statement made and settled in the mode prescribed for the making and settling statements on appeals from final judgments, is unauthorized by law, and will not justify a review of the order appealed from on such other evidence.

By the Court, Sawyer, J.: This is an appeal from an order denying a motion for an order requiring the Sheriff to execute a writ of restitution issued upon a judgment for the possession of land.

The respondents object that the order of the District Court cannot be reviewed on the record presented. And we are compelled to say again, that the methods prescribed by the Practice Act for presenting the order for review have not been pursued. The record may, and it may not, present the entire merits of the case, so that the respondent cannot be prejudiced. But, under the provisions of the statute, we cannot know "that it does.

The statute authorizes appeals from final judgments, and appeals from various orders. And there are several modes of making a record for the purpose of presenting the action of the Court below for review, each mode being adapted to the peculiar exigencies of a particular class of cases, and calculated to enable each party to introduce into the record, in a direct, simple and authentic manner, all that is necessary to present his view without unnecessarily incumbering it. If we could only persuade ourselves to forget old terms and old modes of procedure, which, under our system, have become obsolete, and confine our attention' to the Practice Act itself, it does seem as though we should encounter less difficulty. The abandonment of obsolete terms, which sug[553]gest obsolete modes of procedure, and the adoption of the nomenclature of the Practice Act, would, doubtless, in some degree, tend to induce correct views of its provisions.

Firstly, as to appeals from the judgment. On these appeals there may, or may not, he a statement annexed to the judgment roll, as the parties may desire. The judgment roll itself is a record for an appeal, and there may be no occasion for anything further to present the question raised. But it has been settled from an early day, that on appeal from a judgment, without a statement, nothing is- brought up, or is a part of the record on appeal, except the judgment roll; and no question, arising outside of the roll, can be considered. If any further record is required, it must be made in the form of a statement. How, however, exceptions may be taken and settled at the trial in the mode prescribed by sections one hundred eighty-eight, one hundred eighty-nine and one hundred ninety. (See Moore v. Del Valle, 28 Cal. 174.) These, under section two hundred and three, are annexed to and form a part of the judgment roll, and therefore constitute a part of the record on appeal from the judgment on the judgment roll alone. They are the only exceptions, or bills of exceptions, known to our Practice 'Act, except so far as a ruling and exception to it, presented by a statement made in the mode prescribed by that Act, may be regarded as a bill of exceptions. (Quivey v. Gambert, 32 Cal. 304.) The reasons upon which this restriction of the cases for exceptions, and for the mode prescribed for taking and settling them, seem obvious enough. At the trial both parties are present, and in settling the exception can be heard. 'Each party can see that everything necessary to a presentation of" the entire merits on both sides is introduced.

Wetherbee v. Carroll

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