Malcolmson v. Harris

Beatty, C. J. This is a petition for a writ of mandate to compel the judge of the superior court of Fresno Comity to settle a statement on motion for a new trial. The case has been submitted upon a general demurrer to the petition, the substance of which is: That in an action in which Paulina Fincher was plaintiff, and petitioner a defendant, a judgment was entered in said court in favor of the plaintiff; that thereafter, in due time, the petitioner gave notice of his intention to move for a new trial, upon the grounds, among others, that the evidence was insufficient to justify the decision, and that it was against law, and stating in said notice that the motion would be based upon the minutes of the court; that afterwards the motion for a new trial was made and overruled, and thereupon a correct statement of the evidence and proceedings at the trial was pre[263]pared and served in due time; that the respondent struck out of said statement everything relating to the trial, including the evidence, and refused to settle or act upon the same, upon the ground that there were no minutes thereof, — that is to say, there were no shorthand notes of the evidence, no reporter having been present at the trial, and no notes of the evidence filed or taken in writing by either the clerk or judge; that petitioner has appealed from said order, and requires a statement of the case to support his appeal.

The question presented for decision is, therefore, whether, when a cause has been tried without the presence of an official reporter, and when no notes of the evidence and proceedings at the trial by reporter, judge, or clerk have ever been filed or reduced to writing, the losing party can move for a new trial on the minutes of the court, relying on the recollection of the judge as to such evidence and proceedings, and can thereafter secure a statement of the case, including the evidence, for the purposes of an appeal from the order.

By section 658 of the Code of Civil Procedure, it is provided that when an application for a new trial is based upon the ground, among others, of insufficiency of the evidence to justify the verdict or other decision, or that it is against law, it may be made, at the option of the moving party, either upon the minutes of the court, or upon a bill of exceptions, or upon a statement of the case.

The notice of intention to move for a new trial must be filed within ten days after verdict or notice of decision, and must designate the grounds of the motion, and whether it will be made upon the minutes of the court, bill of exceptions, or statement. If upon bill of exceptions or statement, the bill or statement must be proposed, amended, settled, engrossed, and filed before the motion is heard, and must contain a specification of the particular deficiencies of the evidence upon which