Mellor v. Crouch

McFarland, J. Petition for a writ of mandate to compel respondent, judge of the superior court of Napa County, to settle a statement on motion for a new trial.

Petitioner was defendant in a certain action pending in the said superior court; and judgment having been rendered in favor of the plaintiff therein, the petitioner served and filed a notice of intention to move for a new [595]trial, and, in due time, prepared a draught for a statement on motion for new trial and served it upon the attorney for plaintiff. In due time the attorney for plaintiff therein prepared and served upon petitioner certain amendments to said statement. Within ten days thereafter, the petitioner, not desiring to adopt said amendments, delivered said proposed statement and said amendments to the clerk of said court for the judge thereof, the respondent herein; but petitioner did not serve upon the plaintiff in said action any notice that he had delivered said statement and amendments to said clerk, nor did he serve any notice whatever. The said clerk immediately delivered said papers to said judge, who afterward designated a time at which he would settle said statement, and the clerk notified the parties of such designation. But at the time designated the attorneys for plaintiff in said action appeared and objected to the settlement of the statement, because petitioner had given no notice to plaintiff of his intention to present the statement and amendments to the judge, or to deliver the same to the clerk, or that he had not adopted the amendments. And for these reasons alone the respondent refuses to settle the statement. The proceeding in mandate was submitted on a demurrer to the petition, it being agreed that the facts are correctly stated in the petition, and that final judgment may follow the disposition of the demurrer.

We think that it is the duty of the respondent to settle the statement. The parts of the Code of Civil Procedure which govern the determination of the question here presented are contained in sections 659 and 650. Section 659 provides as follows: “If not adopted, the proposed statement and amendments shall, within ten days thereafter, be presented by the moving party to the judge, upon five days’ notice to the adverse party, or delivered to the clerk of the court for the judge; and thereupon the same proceedings for the settlement of the-[596]