In re Gates

Harrison, J. In the action of Brusie v. Gates et al., a trial was had in the county of Stanislaus, wherein, at the close of the plaintiff’s case, a judgment of nonsuit was rendered. Thereafter, the plaintiff prepared the draft of a bill of exceptions, to which the defendant proposed certain amendments. Upon the presentation of the proposed bill and amendments to the judge for settlement, certain amendments were disallowed, and the bill was settled and allowed February 16,1891. The defendant has presented to this court his petition, setting forth the foregoing facts, together with the amendments that had been prepared by him and disallowed, and the [258]reason why, in his judgment, they should have been allowed, and praying “that he be allowed to prove the truth of the matters set forth in his application, and the materiality of the said amendments.”

The amendments which the defendant sought to have incorporated into the bill consist chiefly of exceptions taken on his behalf to the rulings of the court, either in excluding evidence offered by himself, or in admitting evidence offered on behalf of the plaintiff, and which, in his petition, he avers “should be allowed,-and made part of said bill to explain the exceptions taken by plaintiff, and incorporated therein.”

Section 652 of the Code of Civil Procedure provides that “if the judge in any case refuse to allow an exception in accordance with the facts, the party desiring the hill settled may apply by petition to the supreme court to prove the same.” “ The party desiring the bill settled ” is the one who has taken the exception and presented the bill to the judge for settlement. In the case of a bill of “ exceptions taken at a trial,” he is the one who, after the decision in the cause, prepares the draft of a bill, and serves it upon the adverse party, as is provided by section 650 of the Code of Civil Procedure. After the decision has been rendered in a cause, there would seem to be no occasion for any but the losing party to desire a bill of exceptions settled. The provision that “such draft must contain all the exceptions taken upon which the party relies” implies that it is only that party who relies upon some “ objection upon a matter of law to a decision made by the court” (sec. 646) as a ground for reversing such decision that would “desire” the bill settled. There is nothing in the statute, however, which prevents the prevailing party from having the exceptions taken by him at the trial settled in a bill; but in such case he becomes an actor, and must prepare a draft of his bill and serve it upon the adverse party. Inasmuch, however, as in any review of the decision of the court