40 Cal. 142 | Cal. | 1870
delivered tbe opinion of tbe Court, Temple, J., Cbockett, J., and Wallace, J., concurring:
In tbe action of Bagley v. Sharp, tbe defendant having recovered a verdict, tbe plaintiff moved for a new trial; and a new trial having been granted, tbe defendant appealed from that order. The defendant filed a statement on appeal, and in bis statement, reference is made to tbe plaintiff’s statement on new trial, and it is directed to be, but is not in fact, inserted therein; in other words, tbe statement on appeal, isa skeleton statement. In preparing bis transcript on appeal, tbe defendant copied into bis statement on appeal tbe statement on new trial, at tbe place where, in tbe skeleton statement it is directed to be inserted, and presented tbe transcript to tbe respondent, as tbe Clerk of tbe District Court, and requested him to certify to it as a correct transcript of tbe record, but tbe respondent refused. Tbe petitioner
The respondent denies that the transcript presented to Mm is correct. The canse was submitted without any evidence having been offered upon the issue as to the correctness of the transcript, and we must treat it as incorrect in the respects mentioned in the return. This is a complete answer to the application for the writ, for the Clerk will not be required to certify an incorrect transcript.
The real purpose of this proceeding is to cause the statement on new trial to be inserted in the statement on appeal, at the place therein where occur the words: “ Here insert a copy of said statement, ” and in that manner, to show that the motion for a new trial was heard on a skeleton statement. There are several reasons why the relator should not have the aid of the writ of mandamus in this matter. The errors specified in the statement on appeal are, in substance, that the Court erred in granting a new trial on the skeleton statement; and the statement on appeal presents no fact other than that the motion for a new trial was heard upon such skeleton statement, without considering the exhibits which were therein referred to. It is difficult to conceive of a document more useless than a statement on appeal which merely refers to or embodies the statement on new trial, and specifies as the ground of appeal that the Court erred in granting a new trial on such 'statement. Such practice is not permissible. The practice Act prescribes a plain and simple mode, for the presentation to the appellate Court, of the questions arising upon the statement on new trial.
The exhibits referred to 'in the statement on new trial, but which were not copied into it, will be deemed to have been considered on the hearing of the motion for a new trial. (Kimball v. Semple, 31 Cal., 665.) The statement on appeal alleges that they were not so considered, but this statement is neither agreed to by the attorneys for the respective parties, nor settled by the Judge who heard the motion for a new trial. A copy of the statement
It is not the duty of the clerk to engross the statement, either on new trial or on appeal; nor is it his duty, when a copy of the statement is required, to insert any document which is merely referred to and directed to be inserted. It is his duty to furnish or certify true copies of papers on file in his office, such as the statements on appeal and on new trial, and the exhibits on file in his office; but he is not required to certify a document, made ujo by incorporating one or more of such papers within another.
Had the transcript, when presented to the clerk, been in such condition that he ought to have certified to its correctness, the petitioner had an adequate remedy, by motion in the Court where the record in the cause remained, to compel the clerk to make the requisite certificate.
The petitioner has neither authority nor necessity for using the name of the people in this action.
Mandamus denied.
