Wetherbee v. Davis

SAW YEE, J.- This is an appeal from an order denying a motion for an order requiring the sheriff to execute a writ of restitution issued upon a judgment for the possession of land.

The respondents object that the order of the district court cannot be reviewed on the record presented. And we are compelled to say again that the methods prescribed by the Practice Act for presenting the order for review have not been pursued. The record may, and it may not, present the entire merits of the case, so that the respondent cannot be [404]prejudiced'. But, under the provisions of the statute, we cannot know that it does.

The statute authorizes appeals from final judgments, and appeals from various orders. And there are several modes of making a record for the purpose of presenting the action of the court below for review, each mode being adapted to the peculiar exigencies of a particular class of cases, and calculated to enable each party to introduce into the record in a direct, simple and authentic manner, all that is necessary to present his view, without unnecessarily encumbering it. If we could only persuade ourselves to forget old terms and old modes of procedure, which, under our system, have become obsolete, and confine our attention to the Practice Act itself, it does seem as though we should encounter less difficulty. The abandonment of obsolete terms, which suggest obsolete modes of procedure, and the adoption of the nomenclature of the Practice Act would, doubtless, in some degree, tend to induce correct views of its provisions.

Firstly, as to appeals from the judgment. On these appeals there may, or may not, be a statement annexed to the judgment-roll, as the parties may desire. The judgment-roll itself is a record for an appeal, and there may be no occasion for anything further to present the question raised. But it has been settled from an early day that on appeal from a judgment, without a statement, nothing is brought up, or is a part of the record on appeal, except the judgment-roll, and no question, arising outside of the roll, can be considered. If any further record is required, it must be made in the form of a statement. Now, however, exceptions may be taken and settled, at the trial, in the mode prescribed by sections 188, 189 and 190: See More v. Del Valle, 28 Cal. 174. These, under section 203, are annexed to, and form a part of the judgment-roll, and, therefore, constitute a part of the record on appeal from the judgment, on the judgment-roll alone. They are the only exceptions of bills of exceptions known to our Practice Act, except so far as a ruling and exception to it, presented by a statement made in the mode prescribed by that act, may be regarded as a bill of exceptions: Quivey v. Gambert, 32 Cal. 304. The reasons upon which this restriction of the cases for exceptions and for the mode prescribed1 for taking-and settling them seem obvious enough.