54 Cal. 542 | Cal. | 1880
This case and three other cases, by an order made by the
Pursuant to the stipulation, the referee tried the four cases, and on April 30th, 1874, filed his report, findings, and conclusions of law. Defendant in the Court below gave notice of intention to move for a new trial upon a statement of the case to be prepared according to law. A statement was settled and certified by the referee; and upon it defendant moved for a new trial on one hundred and sixty assignments of error: The Court below denied the motion, and from the order the defendant appealed. This appeal the respondent in this Court moved to dismiss, upon the ground that the transcript on appeal was wholly insufficient, in that it did not contain certain matters of evidence which had been, by stipulation of the attorneys in the cases, used as parts of the statement of the case upon which the Court below denied a new trial. In response to the motion, the appellant filed a release of certain errors, and this Court denied the motion to dismiss the appeal; but as it had no power to amend or add to the statement in the transcript as made in the Court below, it ordered that all of the transcript be disregarded, except the pleadings, the' referee’s report and findings, and the notice of motion and order from which comes the appeal in the cases. In that condition of the record the appeal has been submitted upon briefs of counsel; and we are asked to review certain alleged errors which counsel for appellant claims “ arc shown and illustrated by the findings and report of the referee on its face.”
These alleged errors are errors of fact and of law. To review them involves an examination of the testimony, which was received by the referee at the trial, for and against certain so-called “ objectionable items ” which were allowed in the statement of the account; and also of the evidence upon which the referee made his findings ; so as to determine the legality or illegality of objections made to the allowance or disallowance of interest upon claims, and of commissions and attorney’s fees, as
But errors “ shown and illustrated by the findings and report of a referee on its face ” are part of the judgment roll of a case; for a referee appointed to try and determine a case is, quoad the trial of the case, in the place of the Court, and his findings and report are the equivalent of the findings and decision of the Court itself. “ When a referee,” says the Court, in Harris v. S. F. S. R. Co. 41 Cal. 393, “ reports his decision upon the whole case, his report stands as the decision of the Court. When he reports the facts only, his report is as a special verdict.” The findings a.nd report of a referee are, therefore, part of the judgment roll of a case, (§ 670, subd. 2, Code Civ. Proc.) But, só far as appears on this appeal, there is no judgment roll. No judgment has yet been entered in any of the cases. And even if there were a complete judgment roll in this case, the Court could not, from an inspection of it, undertake to determine whether there was or not error apparent upon it, because there is no appeal from the judgment. It is only upon an appeal from the judgment that the Court can consider errors apparent on a judgment roll, or review the verdict or decision of a case if excepted to, or errors assigned on a statement on appeal. (Hutton v. Reid, 25 Cal. 477; § 956, Code Civ. Proc.)
But here there is no appeal from the judgment, and no statement on appeal. The appeal which has been taken is from an order refusing a new trial. But errors of fact or of law, reviewablc on such an appeal, are such as appear in a bill of exceptions, or statement of the case, settled in the Court below; for the motion for a new trial mustube heard in that Court upon affidavits, or the minutes of the Court, or a settled bill of exceptions, or statement of the case, which contains a specification of the particulars in which the evidence in the case is alleged to be insufficient, or of the particular errors of law upon which the moving party intends to rely; if it does not, it must be disregarded. (§ 659, Code Civ. Proc.) Specification of grounds of error is, therefore, the essence of a statement or bill of exceptions on motion for a new trial, without which it has no legal existence. And upon an appeal from the order granting or re
When, therefore, the so-called statement in the transcript on appeal in these cases was found to be in such an imperfect condition that it had to be disregarded, there was nothing left in the record containing any grounds of error for review by this Court on the appeal from the order denying a new trial. There is, therefore, no record upon which the -appellant is entitled to be heard—no errors which this Court can review. (Hutton v. Reid, supra; Kimball v. Semple, 31 Cal. 658.)
Order affirmed.
Ross, J., and McKinstry, J., concurred.