33 Cal. 549 | Cal. | 1867
This is an appeal from an order denying a motion for an order requiring the Sheriff to execute a writ of restitution issued upon a judgment for the possession of land.
The respondents object that the order of the District Court cannot be reviewed on the record presented. And we are compelled to say again, that the methods prescribed by the Practice Act for presenting the order for review have not been pursued. The record may, and it may not, present the entire merits of the case, so that the respondent cannot be prejudiced. But, under the provisions of the statute, we cannot know "that it does.
The statute authorizes appeals from final judgments, and appeals from various orders. And there are several modes of making a record for the purpose of presenting the action of the Court below for review, each mode being adapted to the peculiar exigencies of a particular class of cases, and calculated to enable each party to introduce into the record, in a direct, simple and authentic manner, all that is necessary to present his view without unnecessarily incumbering it. If we could only persuade ourselves to forget old terms and old modes of procedure, which, under our system, have become obsolete, and confine our attention' to the Practice Act itself, it does seem as though we should encounter less difficulty. The abandonment of obsolete terms, which sug
Firstly, as to appeals from the judgment. On these appeals there may, or may not, he a statement annexed to the judgment roll, as the parties may desire. The judgment roll itself is a record for an appeal, and there may be no occasion for anything further to present the question raised. But it has been settled from an early day, that on appeal from a judgment, without a statement, nothing is- brought up, or is a part of the record on appeal, except the judgment roll; and no question, arising outside of the roll, can be considered. If any further record is required, it must be made in the form of a statement. How, however, exceptions may be taken and settled at the trial in the mode prescribed by sections one hundred eighty-eight, one hundred eighty-nine and one hundred ninety. (See Moore v. Del Valle, 28 Cal. 174.) These, under section two hundred and three, are annexed to and form a part of the judgment roll, and therefore constitute a part of the record on appeal from the judgment on the judgment roll alone. They are the only exceptions, or bills of exceptions, known to our Practice 'Act, except so far as a ruling and exception to it, presented by a statement made in the mode prescribed by that Act, may be regarded as a bill of exceptions. (Quivey v. Gambert, 32 Cal. 304.) The reasons upon which this restriction of the cases for exceptions, and for the mode prescribed for taking and settling them, seem obvious enough. At the trial both parties are present, and in settling the exception can be heard. 'Each party can see that everything necessary to a presentation of" the entire merits on both sides is introduced.
“ The objection shall be stated, with so much of the evidence or other matter as is necessary to explain it, but no more.” (Sec. 190.) The parties have the same opportunity for securing a correct presentation of the exception as is afforded in' settling a statement. The only other mode of making up
Secondly, as to appeals from orders : Proceedings resulting in orders are not ordinarily enrolled, and there is, consequently, no technical record. There is no record for an appeal except one made for the purpose in the mode prescribed. When an appeal is taken from an order made upon affidavits alone, the affidavits are filed, and, in making a record for the appeal, are attached to the order with the proper identification. In such cases there cannot well be a partial record, and the statute requires nothing more. . But when made upon other evidence, either alone or in connection with affidavits, much of it often consists of documents not filed, judgment'rolls and files in other cases, which are not, and cannot, be made a part of the files in the case heard. Questions of admissibility of evidence, etc., may arise. A convenient way of making so much of these as is necessary to present the legal points contested a part of the record on appeal is by statement, and that method is accordingly adopted, and no other is provided. (Haggin v. Clark, 28 Cal. 162. See, also, Abbott v. Douglas, 28 Cal. 299; Hutton v. Reed, 25 Cal. 479; Harper v. Minor, 27 Cal. 107, for the reasons for adopting this mode of making statements.)
. Certain grounds for new trial are required to be presented by affidavit, others by a statement. (Sec. 194.) The plead
And we think these several modes convenient and certain, and fully adequate to all the exigencies of proceedings on appeal. Other modes, especially when wholly or in part ex parte, are liable to, and often do, result in an imperfect or partial record. The statute has provided a uniform mode of procedure for each class of proceedings, and .we are not authorized to recognize any other; besides, it is extremely desirable that a uniform practice should be enforced. The present record is not in accordance with the method provided for the class of cases to which it belongs, or with any of the methods prescribed.
Although the so called bill of exceptions contains matter proper to be embodied in a properly prepared statement, it is not pretended that there is a statement on appeal. There are certain affidavits and exhibits, followed by what is termed a bill of exceptions, signed and sealed by the Judge. The bill of exceptions must necessarily have been made up, signed and sealed at some time subsequent to the making of the order from which the appeal is taken. It was probably made ex parte. At all events, nothing to the- contrary appears, and, as there is no provision for such a document, there is none requiring it to be submitted to the other party. It recites that; upon the hearing of the order to show cause,
The questions may be fairly presented by the bill of exceptions. Tet portions of the record necessary to illustrate the respondent’s view may be omitted. At all events, the exception, under the Practice Act, should have been presented in a statement, in the settlement of which the respondent was entitled to participate. We are not authorized to recognize a record not made in the mode prescribed, in the settlement of which the respondent had no opportunity 'to participate. The objection taken is not merely technical, but is substantial. Respondent has been deprived of a right which the law gives him. If we have at any time considered points presented by what was designated a bill of exceptions instead of a statement, as we have in one instance, at least, (Warden v. Mendocino Co., 32 Cal. 657,) it was because no objection was made on that ground. We ought, perhaps, to apologize for repeating in this case much that has so often been said before in other classes of appeals, but, as thé mistakes continue to be repeated, we thought it desirable to present, in one connected view, the mode of proceeding in each class of appeals.
It is claimed, however, that the stipulation that the foregoing twenty-one pages constitute the transcript on appeal from the order, and contain true, full and correct copies of
We think not. The stipulation is but a substitute for the Clerk’s certificate to the correctness of the transcript. It simply shows that this is a transcript of such record of the proceedings as has been, in fact, made in the Court below— such as it really is. The record itself may be sufficient or insufficient under the law to authorize the Court to review the action of the Court below. The stipulation in this case shows what the record in fact is—nothing more. It might, undoubtedly, have gone further, but it has not done so, and manifestly was not designed to do more than authenticate the transcript as a true copy of the record below. And that is the extent to which such stipulations usually go. When attorneys design to stipulate for anything further, they will doubtless do so in terms not to be misunderstood.
We are of the opinion that the order cannot be disturbed on this record. It is therefore affirmed.
Neither Mr. Chief Justice Curret nor Mr. Justice Shatter expressed an opinion.