63 P. 914 | Cal. | 1901
The defendants in this case appeal from an order denying a new trial. The respondent makes a preliminary motion to correct the record of the proceedings in the superior court. The facts are that the defendants, in support of their application for a new trial, served a draft of their proposed bill of exceptions, which showed that the trial judge, of his own motion, had given a certain instruction, numbered 18, to the giving of which they had duly excepted. The proposed bill also contained a special assignment of error upon the giving of instruction numbered 18. In this particular the bill of exceptions was settled and allowed by the trial judge, Hon. J.K. Law, in substance as *616
proposed by defendants, and was filed April 27, 1900. The motion for a new trial was submitted to Judge Minor on June 28th and denied on July 2d. Defendants appealed July 14th, filed the transcript in this court August 22d, and on October 11th filed and served their brief in which they presented their assignment of error upon the giving of said instruction. The attention of the respondent seems then to have been drawn for the first time to this feature of the bill of exceptions, and soon afterward, and within six months from the settlement of the bill, he commenced proceedings to amend the record so as to make it appear that the instruction of which the appellants are complaining was really given at their request, and not volunteered by the court. After considerable delay, occasioned by a change of incumbents in the office of superior judge, an order was made by Judge Rector on January 15, 1901, correcting the bill substantially in accordance with the motion of the respondent; that is to say, it appears from the order of Judge Rector that the defendants presented the instruction to Judge Law, the trial judge, with a request that it be given, but it was not given in precisely the form in which it was requested. Before giving it Judge Law struck out one or two words and altered one sentence slightly, but without changing its meaning or effect. The only tendency of the alterations made by him was to make the instruction somewhat less open to the objection now urged against it than it was as originally requested by the defendants. Because of this modification of the instruction by the court before giving it the appellants contend, in opposition to this motion, that the statement contained in the bill of exceptions as proposed was true, that the instruction given was not the instruction they asked, but an instruction volunteered by the court, and upon this point they cite Morgan v. Peet,
We are brought, then, to the question whether it was competent for the superior court to correct this bill of exceptions after the entry of the order denying a new trial, and an appeal to this court, and the filing of the record here.
This bill of exceptions being the basis of the motion for a new trial, and the record upon which the order overruling that motion rests, can it be changed without first setting aside that order? And can that order be set aside by the superior court after it has been appealed to this court? We have no doubt that a bill of exceptions, or statement which has been settled after appeal taken, may be corrected by a proper proceeding under section
The motion to amend is denied.
McFarland, J., and Henshaw, J., concurred.