Clough v. Superior Court

PLUMMER, J. Application for a writ of mandate requiring Honorable H. S. Gans, as Judge of the Superior Court of the State of California, in and for the County of Tehama, to settle a certain bill of exceptions. The basis of the present proceeding was an action brought to condemn for highway purposes a strip of land through property known as “Deer Creek Meadows” belonging to the defendants. The action was prosecuted by the People of the State of California to condemn the strip of land referred to, for highway purposes. A description of the premises is unnecessary. The trial was had before a jury, and the petitioners in this proceeding were, in the action tried before the jury, awarded judgment in the sum of $470, as the value of 14.09 acres sought to be condemned. From this judgment the respondents in the eminent domain proceedings appealed, and thereafter tendered to the judge of the trial court a proposed bill of exceptions to be used on appeal.

Instead of proceeding to settle the bill of exceptions, the court in the action referred to made and entered the following order which (omitting title), is in the words and figures following, to wit:

“In this case, after the sixty-day period has elapsed, and the hearing was brought on pursuant to some stipulations and agreements between counsel apparently, the court is asked to settle a proposed bill of exceptions. The moving party claims that no amendments having been offered there is nothing for the court to do save sign and settle the documents as presented.

“The plaintiff claims that the bill is so defective that it does not present the true facts and is not a true record of the trial or of the several points raised. The moving party claims that he has given the substance of the matters and all that is required; and it is admitted that no transcript has been had and that the proposed bill was made up from [16]notes of counsel at trial and some small quantity of testimony that was written up. In this case there was a steno-' graphic report of the proceedings. I have never yet heard of a record made up without a transcript when one was available. It seems to me that the record as it is should be presented to the court on an appeal, and that this court should not be asked to assume the burden of preparing a complete transcript, which would seem necessary if the court is to act upon this one at all. The court does not have the record and it is apparent that the record is not fully presented. I dislike very much to refuse to sign a transcript, but feel that in this case I am justified in so doing.