Hicks v. Masten

Haynes, C.— This is an original application to this

court for a writ of mandate requiring the respondent to settle a bill of exceptions.

Petitioners were defendants in an action tried before respondent and a jury in said superior court, wherein one J. F. Sharp was plaintiff. A verdict was rendered against petitioners, and a judgment was entered thereon. [652]Petitioners served upon Sharp’s attorneys a proposed hill of exceptions, and on April 5, 1892, amendments thereto were served upon petitioners’ attorneys. On April 9th the original proposed bill was left with the judge at his chambers, and on the following day the proposed amendments, and certain„ objections which were served by Sharp’s attorneys, were also left in the judge’s chambers. On the 11th, in open court, one of Sharp’s attorneys being present, counsel for petitioners requested the court to fix a time for the settlement of the bill of exceptions, “and the judge, from the bench, stated that the bill of exceptions and objections to settlement, and proposed amendments to the bill in the case of Sharp v. Hoffman, had been left with him for settlement and were in his chambers, and that he would proceed to settle the same on the twelfth day of April, 1892, at 10 o’clock a. m. at his chambers, and requested both parties to be present at that time”; and Sharp’s attorney then stated he would be “on hand.”

No written notice of the presentation of the proposed bill and amendments was served by the moving party. An inquiry was made by counsel for petitioners of Sharp’s attorney at the time the amendments were served, whether they could settle the same some day that week, to which the reply was made by Sharp’s attorney that “he didn’t see how they could.”

At the time fixed by the court the attorneys of both parties were present, and Sharp’s attorney then presented written objections to settling the bill upon several grounds therein stated, but which, in fact, covered but two points, viz; 1. That the proposed bill of exceptions was not prepared and served in time; and 2. That the five days’ notice in writing required by the code, of the presentation to the judge for settlement, had not been given, and upon the latter ground the judge made a written ruling or order sustaining the last objection, and refused to settle the bill. The attorney for the moving party then requested the judge to shorten the time of written notice to three days, so that the settle[653]