People v. Bartlett

APPLICATION for a writ of mandamus to issue to the Clerk of the District Court of the Fourth Judicial District of the State of California, in and for the City and County of San Francisco.

The other facts are stated in the opinion.

The ground of the relator’s appeal is, that when the Court granted Bagley a new trial, it did not have any statement before it upon which in law it was authorized to act, because the exhibits upon which the relator’s defence was founded, and the judgment rendered, were not copied in the statement, or in possession of the Court.

Without discussing the merits of Bagley v. Sharp, in this proceeding, we will say, that if these facts are established, the action of the Fourth District Court was clearly erroneous, and the order granting the new trial must be reversed.

The respondent is attempting to compel the relator to falsify his own statements, and present to this Court a record entirely different from that upon which the lower Court acted in making the order complained of% What power respondent or counsel possess to alter a paper filed in a canse tbat bad been finally acted upon by tbe lower Court, we cannot conceive. Before tbe statement was pre-sentecl to tbe Court, Bagley bad tbe right to engross it; but after tbe Court bad passed upon it, tbat action must be reviewed upon tbe document, as it existed at tbat time, and not as afterward conceived it should have been made,

If this' is not true, what remedy will tbe relator have ? Tbe Court, without any showing whatever, upon an ex parte statement, manifestly not containing tbe relator’s evidence, sets aside a judgment recovered by him; puts him to tbe expense, loss of time and annoyance of another trial. Knowing be has been aggrieved, be applies to this Court for redress, but is told tbat be cannot present bis cause here, unless be also presents evidence which tbe Court did not have before it at tbe time tbe injurious order was made.

If this was certiorari, instead of mandamus, would respondent certify tbe Statement on Motion for New Trial, as bo finds it on record, full of blanks, or nicely doctored, complete and changed as be now desires it? And if bis duty compels him to certify tbe papers in one case, as be find them on file, be must in all.

As we said on tbe opening, if relator bad engrossed this statement on appeal in tbe same way as be has now, and then filed it, the respondent would not and could not have made tbe least objection to certify it. An engrossment is required simply to have tbe statement complete, when tho Court is to pass on it. In our case, it was engrossed by inserting it in tbe transcript, as we have, and tbe record is complete for this Court. What difference, then; can it make whether tbe statement on appeal is engrossed, then filed, and then copied in tbe transcript or engrossed directly in tbe transcript. It seems like a distinction without a difference. There is no pretence tbat tbe statement on appeal is not correctly engrossed. Bespondent is seeking, however, to make it appear tbat tbe statement on motion for new trial was engrossed when in fact it was not.