Flagg v. Puterbaugh

Temple, C.— This is an original proceeding in this court for a writ of mandamas to compel the respondent to settle and certify a bill of exceptions. The petition was demurred to on various grounds. The demurrer was sustained solely on the ground that more than sixty days had elapsed since the order was made, and the petition does not show that an appeal had been taken. All other objections were expressly overruled, and leave was given to amend in order that the defect might be supplied, if the facts would warrant it.

An amended petition was filed, from which it appears that an appeal' to this court was perfected eight days after the order dissolving the attachment was made.

[584]The amended petition is now demurred to on the ground of insufficient statement of facts, and two points are made:

1. The appeal can serve no useful purpose, because it was not perfected within five days, and the undertaking on appeal was not for double the amount claimed. Therefore the lien of the attachment was not preserved. (Code Civ. Proc., sec. 946.)

But the code expressly authorizes an appeal from an order dissolving an attachment within sixty days (Code Civ. Proc., sec. 939), and it is evident that the appellant is given the option either to take the steps which will preserve the lien of the attachment or not. We are not now called upon to say what effect a reversal of the order dissolving the attachment may have on the lien.

2. It is said that the respondent is not asked to settle and certify the bill of exceptions; that the proposed bill contains no such request. Landers v. Lawler, 84 Cal. 547, is relied upon as authority for this contention. I do not think that case is authority for this.

The original proposed bill of exceptions here was signed by the attorneys, and opposing counsel were notified that it was proposed as a bill of exceptions, and the judge certifies that he was asked to settle and certify it, and that he refused simply because it was not in time. Besides the bill as amended is the bill which respondent is now asked to settle.

I think the demurrer should be overruled.

Belcher, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion it is ordered that the demurrer be overruled, and, under the provision of rule 26, subdivision 30, a peremptory writ of mandate is ordered against the respondent, commanding him to settle and certify the bill of exceptions as prayed for in the petition herein.