81 P. 1098 | Cal. | 1905
On July 7th, inst., Adolph Schander, who is appealing from a decree of the superior court admitting to probate the will of Bertha M. Dolbeer, filed his verified petition for leave to prove certain exceptions to rulings of the court which, as he alleged, the judge thereof had refused to *360 allow in accordance with the facts. An order was thereupon entered allowing the petitioner to make proof of the alleged exceptions and referring the matter to the chief justice "to take the testimony in reference to the exceptions alleged in said affidavit to have been reserved by the contestant and the circumstances under which the same were taken and to report the result of his proceedings."
At the time agreed upon the parties appeared before the chief justice and much evidence was heard in relation to the exceptions specified in the petition. During the hearing the petitioner sought to prove some exceptions additional to those specified in his petition, but the chief justice held that he had no authority under the order of reference to take proof of such additional exceptions, and the petitioner subsequently — on July 14th — made the present application to the court for leave to amend his original petition by adding thereto certain specifications of other rulings and exceptions which he alleged the judge has refused to allow in accordance with the facts.
For the reasons following we think the application should be denied. The proceeding is under section 652 of the Code of Civil Procedure, which reads as follows: "If the judge in any case refuse to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the supreme court to prove the same. The application may be made in the mode and manner, and under such regulations as the court may prescribe; and the bill, when proven, must be certified by the chief justice as correct, and filed with the clerk of the court in which the action was tried, and when so filed it has the same force and effect as if settled by the judge who tried the cause."
This court has never made any formal rules governing applications to prove exceptions, and so far as the mode of procedure is concerned the practice has been sufficiently liberal. As to the extent of our powers the construction of this section has been rather strict. (Landers v. Landers,
From this it follows, that just as soon as the trial judge has concluded the settlement of the proposed bill of exceptions or statement and directed its engrossment with the omission of an exception or exceptions which the party seeking the allowance of the bill claims to have reserved, the right to apply to this court for relief under section 652 of the Code of Civil Procedure has accrued, and the application should be made with reasonable promptitude. In this case it appears from the original petition that the trial judge concluded the settlement of petitioner's bill on the twenty-eighth day of April, 1905, and directed its engrossment as allowed. It was more than two months thereafter before the petition to prove exceptions was filed here, and the respondents in the appeal complain of this delay, and make it a ground of objection to the original petition. But considering the length of time consumed in the trial of the will contest, the great number of controverted points in the case, and the necessary bulk of the statements to be engrossed, we think that any apparent delay in presenting the original petition is excusable. We are, however, unwilling to make a precedent for allowing further amendments to petitions of this character after a reference to hear the evidence and report upon the matters originally presented. The whole proceeding is anomalous, and when conducted in the most methodical and expeditious manner makes a demand upon our time which interferes most seriously with the performance of our more legitimate and more imperative duties as defined by the constitution. We feel justified, therefore, in insisting that the party seeking the allowance of exceptions which the trial judge has refused to allow should present his whole case in his original petition, or, at least, before a hearing upon a reference to take the testimony and report.
Petition for leave to amend denied.
Van Dyke, J., Shaw, J., Angellotti, J., Lorigan, J., and McFarland, J., concurred. *363