Purcell v. McKune

14 Cal. 230 | Cal. | 1859

Baldwin, J.

delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

■ Conceding, as we do, that this Court has, by virtue of its appellate powers and the authority given it to issue process necessary to give effect to its appellate powers, the right to compel the inferior tribunals to proceed to hear and determine causes of which they refuse to take cognizance; still, we think the facts of this case do not entitle the petitioner to his prayer.

We do not think that the rule of the District Court, requiring a party, on motion for new trial, or for judgment on a special verdict, to prepare and submit a statement of the facts at the trial, applies to a case like the one below, which was an issue submitted in a chancery cause, to a jury, to determine and return a finding on certain matters of fact. But whether the Judge below could require this duty of the Attorney or not, it seems he requested it, and no objection was made by the Attorney, and that the Judge relied upon this statement as a means of enabling him better to pass upon the matters before him. If, in consequence of the failure of the Attorney to furnish this statement, he is unable, in the present condition of things, satisfactorily to pass upon the case, we see no mode of coercing him. to do so, and as little propriety in so ordering.

The findings on issues are merely advisory to him, sitting as a Chancellor, and if the proceedings before the jury and the evidence be not within his memory, and if the counsel be unwilling or unable to furnish a statement of them, it is for the Court below to determine whether it can intelligently proceed to dispose of the cause in its present shape; or it must, on its own responsibility, take the steps deemed by it necessary or proper in the premises. It may proceed to rehear the cause upon the proofs and pleadings, or, possibly, it might require the Attorney to prepare the statement. At all events, it is very certain that we cannot interfere in the manner prayed for by the petition.

Petition denied.