73 P. 590 | Cal. | 1903
This is an application for a writ of review. The record shows that in the case of the City of Santa Rosa, plaintiff, v. Fountain Water Company, a corporation, and J.M. McDonald, defendants, pending in the above court, a judgment in favor of the plaintiff was entered on the 25th of April, 1901. Thereafter, defendants served and filed a notice of intention to move for a new trial, and, on the twenty-ninth day of October following, the judge of said court, upon agreement of the attorneys on both sides that said statement was correct, duly settled and certified the same, and on the same day it was filed in the office of the county clerk of said county.
The motion for a new trial upon said statement was thereafter argued and submitted to the court and taken under advisement. On the third day of February, 1902, the attorneys for the plaintiff moved the court for an order vacating and setting aside the settlement of said statement, and to correct alleged errors therein, which motion, on the 10th of March, 1902, was denied, but the court on said date set aside the order theretofore entered submitting the motion for a new trial.
Thereafter, and on the 10th of April, 1902, said motion for a new trial was resubmitted to the court and taken under advisement. On the 22d of April following, the plaintiff renewed its motion for an order vacating and setting aside the settlement of said statement, and to correct and amend it in the same particulars as specified in the similar motion of the 3d of February, 1902, which motion, on the 28th of April, 1902, the said court denied.
Afterwards, on the 12th of May, 1902, without any notice to either side, and in the absence of any application pending therefor, the court of its own motion made an order setting aside the submission of the motion for a new trial; also an order canceling and setting aside the certificate of settlement and allowance of said statement made on the 29th of October, 1901, and made a further order striking from the statement the proceedings relative to the depositions of several witnesses offered on the trial of the cause, and inserting in lieu thereof the transcript of the court reporter's notes of the proceedings with reference to such depositions, and as so amended, certified to the same *650 as the settled and allowed statement on motion for a new trial.
The petitioner now claims that the action of the lower court in canceling said certificate of October 29, 1901, and amending said statement, was in excess of its jurisdiction, and it is to review this action that this application is made.
We cannot see how, either upon authority or principle, the action of the lower court can be sustained. When the statement was settled and filed, it became a record of the court, and was only subject to the action of that tribunal within the time limited by law. It will be observed that the action of the court in attempting to amend the statement was not taken until long after the expiration of six months from its original certification. At common law the court had full and complete control over its judgments until the end of the term during which they were rendered. Until the expiration of that period the proceedings, although closed as a matter of fact, were still treated as being in fieri, and did not become final until the expiration of the term. Under the procedure in this state the power of the court to amend its record in matters of this character is derived from section
Section 68 of the Practice Act was similar in all respects to the section of the code above referred to, excepting that the period within which application might be made to amend or correct was limited to five months after the expiration of the term. Construing that section, this court said in Flynn v. Cottle,
In that case — Sprigg v. Barber,
"Whether in any case a plaintiff can, by mere motion, obtain the character of relief here sought, need not be determined, since obviously it cannot be had in this instance. The presentation and settlement of a bill of exceptions or statement of the case is a `proceeding' within the provisions of section
"The application to the court below having been made more than six months from the date of the certificate of settlement, that court was without power to allow an amendment or correction of the statement, and its order denying the application cannot be disturbed." (See, also, Baker v. Borello,
We hardly deem it necessary to comment further upon a proposition which seems to be so effectually settled by these authorities. The cases of Warner v. Thomas,
It is objected that this court should not entertain this application because the petitioner has a plain, speedy, and adequate remedy at law by appeal. We are unable to agree with counsel in this regard. An order granting an amendment to a statement upon motion for a new trial is not an appealable order(Yerian v. Linkletter,
The order of the court of May 12, 1902, canceling and setting aside the certificate of settlement and allowance of said statement, made on October 29, 1901, and amending and certifying the same on said May 12, 1902, should be annulled, and it is so ordered.
McFarland, J., Beatty, C.J., Shaw, J., and Van Dyke, J., concurred.