90 Cal. 262 | Cal. | 1891
This is a petition for a writ of mandate to compel the judge of the superior court of Fresno Comity to settle a statement on motion for a new trial. The case has been submitted upon a general demurrer to the petition, the substance of which is: That in an action in which Paulina Fincher was plaintiff, and petitioner a defendant, a judgment was entered in said court in favor of the plaintiff; that thereafter, in due time, the petitioner gave notice of his intention to move for a new trial, upon the grounds, among others, that the evidence was insufficient to justify the decision, and that it was against law, and stating in said notice that the motion would be based upon the minutes of the court; that afterwards the motion for a new trial was made and overruled, and thereupon a correct statement of the evidence and proceedings at the trial was pre
The question presented for decision is, therefore, whether, when a cause has been tried without the presence of an official reporter, and when no notes of the evidence and proceedings at the trial by reporter, judge, or clerk have ever been filed or reduced to writing, the losing party can move for a new trial on the minutes of the court, relying on the recollection of the judge as to such evidence and proceedings, and can thereafter secure a statement of the case, including the evidence, for the purposes of an appeal from the order.
By section 658 of the Code of Civil Procedure, it is provided that when an application for a new trial is based upon the ground, among others, of insufficiency of the evidence to justify the verdict or other decision, or that it is against law, it may be made, at the option of the moving party, either upon the minutes of the court, or upon a bill of exceptions, or upon a statement of the case.
The notice of intention to move for a new trial must be filed within ten days after verdict or notice of decision, and must designate the grounds of the motion, and whether it will be made upon the minutes of the court, bill of exceptions, or statement. If upon bill of exceptions or statement, the bill or statement must be proposed, amended, settled, engrossed, and filed before the motion is heard, and must contain a specification of the particular deficiencies of the evidence upon which
If the motion for a new trial is to be heard on the minutes of the court, it must be made at the earliest practicable period after notice (Code Civ. Proc., sec. 660); and on appeal from the order granting or refusing the motion, a statement to be subsequently prepared forms a part of the record, (Sec. 661.)
By these various provisions a very simple, plain, and expeditious practice is prescribed, by which the trouble, expense, and delay of settling statements or bills of. exceptions may be entirely, avoid.-d in all that large class of cases in which the order of the trial judge granting or denying a new trial is accepted as final, as it always must be — so far as the ground we are considering is concerned — when there is a substantial conflict of evidence. And even where the losing party wishes to appeal, it will generally be easier and more convenient to make a statement after than before the order; for the argument of the motion will generally eliminate many of the points, as its decision will always do away with the necessity of setting out evidence upon points as to which there is an admitted conflict. The wonder is, that a, practice so convenient, so saving of time, trouble, and expense, is so little resorted to.
Possibly the explanation is to be found in the fact that the terms of the statute leave it doubtful whether in a case like the present, where there are no written notes of the testimony capable of being placed on file, the moving party can have any advantage of the testimony actually adduced at the trial, and necessarily resting alone in the recollection of the judge. If so, it is fortunate that an occasion has arisen for removing any misconstruction on that point, for we have no doubt
It is ordered that a peremptory writ of mandate be
Sharpstein, J., Paterson, J., De Haven, J., McFarland, J., and Harrison, J., concurred.