Sansome v. Myers , 80 Cal. 483 ( 1889 )

Works, J.

A statement of this case will be found in 77 Cal. 353, where the allegations of the respondent’s answer are stated. We there held that the answer was sufficient. Subsequently the issues arising upon the petition and answer were referred for trial and determination to Hon. W. 0. Van Fleet, judge of the superior court of Sacramento County, with directions to report his findings to this court, which he has done.

The findings are as follows:—■

“ 1. That said proposed bill was noticed for settlement on the seventeenth day of April, 1888, and was on said day called up by petitioner’s counsel before said respondent judge for settlement, but was, at the request of the district attorney, continued to the twenty-fourth day of April, without at that time any examination or discussion of its contents. On said twenty-fourth day of April, petitioner’s counsel again called said proposed bill to the attention of respondent, at which time the district attorney, through his assistant, objected to the settlement of said bill, on the ground that it was not a fair and truthful statement of the proceedings at the trial,- and was a mere skeleton thereof. These objections were verbally made during the argument by counsel, in which he went over said proposed bill, and pointed out what he conceived to be the defects and objectionable features thereof. During a reply to this argument by the petitioner’s counsel, the proceedings were interrupted .by other business of the court, and the further hearing of said matter was continued by respondent to the first day of-May. On that date counsel for the prosecution being absent, the matter was again postponed, and no further consideration thereof had until the eighth day of May. At this last date the prosecution renewed their objection-to the settlement of said bill, and after some argument by both parties, the respondent refused to settle said bill, and made his indorsement thereon, wherein he set forth his reasons for said refusal. Said indorsement will be found attached to said original proposed bill, which is hereafter referred to and made part of these findings. The prosecution did not at any time present amendments to said proposed bill, but contended that it was a-mere skeleton, and that neither they nor the respondent were called upon to amend the same or make it truly present the facts, and that it was petitioner’s duty to-present to respondent a fair and truthful bill for settlement. The petitioner, contending that said bill was good and sufficient in substance, did not at any time ask permission to correct or amend the same; nor did the respondent at any time make any direction or suggestion to the petitioner’s counsel to take said proposed bill and amend or change it in any respect; and the statement in tha answer of respondent herein, that continuances of the settlement were had to enable petitioner to present a full and fair bill,-is not sustained by the evidence, but is repudiated by the respondent.”

■ “2. That the document marked 1 Exhibit B,’ hereunto attached and made part of these findings, is the original proposed bill of exceptions as the same was presented by petitioner herein to the respondent for settlement, together with the respondent’s indorsement at the end thereof showing his refusal to settle said bill; and that the document marked ‘Exhibit 0,’ hereunto attached and made part hereof, is a transcript of the reporter’s notes of the testimony of the proceedings had and taken at the trial of the case of People v. Sansome, and upon which said proposed bill of exceptions is based.

“3. Note. — Petitioner desired a finding upon the questions raised by respondent’s answer as to whether the proposed bill is a fair one, or merely a skeleton. ■This I refused, for the reasons stated on page 16 of exhibit A, and because I conceived that question can only be answered by an inspection of the record which is before this honorable court, and involved, to my mind, if not a question of law purely, at least a mixed question of law and fact, upon which it was not my province to pass.”

The reasons of the respondent for refusing to settle the proposed statement were stated in his indorsement on the same, which was as follows:—

“ The within bill of exceptions being this day finally submitted to me for settlement, I hereby refuse to settle the same, upon the ground that it is inaccurate, and in many respects untrue', and contains but a meager and partial statement of the facts- and proceedings leading up to and connected1 with and upon which the rulings of the court therein were had that are complained of, and also a mere defective skeleton of the testimony and evidence submitted to the jury, and upon which they rendered their verdict of guilty.”

We do not regard these as sufficient - grounds for refusing to settle a statement. If anything was omitted from the statement, or any matter was incorrectly stated, it was the duty of the district attorney to propose such amendments as would correct the omissions or errors. His failure to do his duty in this respect did not justify the respondent in arbitrarily refusing to act in the matter. As was said in the former decision in this case, it was not the duty of the judge to prepare a statement, but it was his duty to see that one was properly prepared, and then sign it. If the .attorney for the petitioner had omitted anything material, the judge should have directed and required him to insert it, or if matter was incorrectly stated, he should have required him to correct it, if the district attorney had neglected his duty by failing to propose the necessary amendments, which he seems to have done. If the petitioner had refused or neglected to so correct the proposed statement as directed, the judge would no doubt have been justified in refusing to settle the same, but not otherwise. This the findings show was not done. The respondent rer fused in the first instance to settle the statement, not to sign it. This we think he had no right to do. To so hold would place it in the power of the trial judge to deprive a litigant of his .right of .appeal by simply refusing to perform a plain duty.

We must not be understood as intending to justify the too prevalent habit on the part of some attorneys of presenting an imperfect statement, thereby casting upon opposing counsel and the court the labor of piecing out and making complete a statement that should have been made perfect by the appealing party in the first instance. Such a course, whether it results from a design to gain an undue advantage, or from indolence, should be severely condemned, and the party practicing it should be required by the judge to make and present a proper statement.

It is .evident that the proposed statement in this case was prepared by a novice. It is unskillfully drawn, but we cannot say that it was prepared with a view to obtain an undue advantage in this court. It may be, as is contended, that the evidence was not set out as fully as it should have been, but as the evidence was all taken down in short-hand, the defect can be remedied without serious inconvenience to the respondent. In the preparation of a statement, the evidence should be condensed and put in narrative form. To set out the questions and answers in full is unnecessary, and only increases the labor of this court and the expense of the appeal.

. We think the petitioner is entitled to have his statement settled as prayed for, and that the peremptory writ should issue.

It is so ordered,

Sharpstein, J., and Fox, J., concurred.