Vance v. Superior Court of Sacramento County

McFarland, J. This proceeding is in the form of an original petition to this court, in which it is stated, substantially, that the petitioner, Vance, was a defendant in a certain action in the court of respondent; that judgment having been rendered against him in said action, he presented to the respondent, judge of said court, a draught of a bill of exceptions which, it is averred, contained a true statement of the proceedings and evidence in said action; that the said judge changed said draught by striking out certain' things from its statement of said proceedings and evidence, and inserting certain other things therein, and settled said bill as so amended by him; and that the amendments made by said judge were incorrect and untrue. The prayer of the petition [391]is, that this court “will allow and settle said bill of exceptions as set forth in the printed pages of this petition.” The printed pages of the petition contain the entire draught of the bill of exceptions, which purports to state all the proceedings and evidence in the action referred to, and the written part shows the amendments made by the judge before the settlement. The amendments do not appear to us to be material, and )ret they may have some importance which does not appear here.

If this proceeding can be maintained at all it must he by virtue of section 652 of the Code of Civil Procedure. The language of that section is as follows: “ If the judge In any case refuse to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the supreme court to prove the same.” Now, it seems quite apparent, upon the face of this language, that the petition must be based upon the refusal of the judge to allow an exception which is “an objection upon a matter of law to a decision made . . . . by a court, tribunal, judge, or other judicial officer” (Code Civ. Proc., sec. 646); but in the petition now before us there is no averment or showing or pretense that the respondent refused to allow any exception whatever, or that the proceedings or evidence about which the dispute occurs had any reference whatever to any exception which he refused to allow. The petitioner therefore clearly fails to bring himself within the language of the section. It is argued, however, by petitioner, as it has been argued by counsel in other recent cases, that there should be no “narrow” construction given to section 652, but that this court should construe it to extend to every imaginable case where, in a statement on motion for a new trial, or (which is practically the same thing) in a long bill of exceptions covering the whole trial, there is a dispute between the attorney and the presidding judge as to what evidence had been introduced, or what in other respects had occurred at the trial. This