Matter of the Estate of Philip Biddel (1888) · DecisionDepot

Matter of the Estate of Philip Biddel

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Mar 8, 1888 No. No. 12559Published

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Holding. The court denied an application to settle a bill of exceptions because the petition failed to provide sufficient averments detailing how the bill's statements conflicted with the facts.

Issues

Whether the petition for a bill of exceptions contained sufficient averments to allow the court to determine if the bill's statements were contrary to the facts.

Disposition. Denied and dismissed without prejudice.

Synopsis

Bill of Exceptions—Settlement bt Supreme Court—Contents of Petition. — A petition to the supreme court for the settlement of a bill of exceptions should set forth the statements of the bill as settled by the judge of the trial court, which are alleged to be contrary to the facts, together with a statement of the facts and the point of the exceptions. A mere statement in the petition that the bill as settled by the trial judge does not state sufficient of the testimony of witnesses to explain the questions to which objections or exceptions were taken, is insufficient.

The Court. —This is an application to settle a bill of exceptions.

The petition is insufficient. Its averments should show the mode in which the bill of exceptions is settled by the judge of the superior court, so that this court can [230]see whether the statements of the bill are contrary to the facts. To illustrate: the petition should set forth the statements of the bill which are alleged to be contrary to the facts, together with a statement of the facts. The point of the exception should also be stated".

The court can then, by comparing the bill of exceptions as settled or proposed to be settled by the judge with the facts as stated, determine whether or not its statements are contrary to the facts.

The averments in relation to the bill of exceptions do not conform to the above, which we understand to be the rule. Averments that the bill of exceptions does not state sufficient of the testimony of witnesses to explain the questions to which objections or exceptions are taken, will not do. The petition must contain allegations, the terms of which show this to be the case.

The application is therefore denied, and the petition dismissed without prejudice.

Matter of the Estate of Philip Biddel

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