Paris v. Raynor — 76 Cal. 647

Majority

p. 647

[No. 12538.

In Bank.

June 22, 1888.]

A. B. PARIS et al., Respondents, v. P. A. RAYNOR, Appellant.

Headnote

New Trial—Statement — Specifications of Error—Exceptions.— Specifications of error in a statement on motion for new trial will not be regarded where no objection or exception was entered or reserved.

Id. — Evidence in Statement. — When the statement on motion for new trial does not purport to contain all the evidence, and does not show, except by inference, that anything related in the statement occurred at the trial, or that any witness was sworn, it cannot be regarded, and the order refusing a new trial will be affirmed.

Id. — Judgment Roll—Bill of Particulars—Instructions. — Neither a bill of particulars nor instructions of the court are any part of the judgment roll, nor will they be considered on appeal from an order refusing a new trial, if not incorporated in the statement.

p. 648

Appeal from a judgment of the Superior Court of San Bernardino County, and. from an order refusing a new ‘trial.

The action was brought by the plaintiffs as law partners to recover the sum of three thousand dollars for service rendered to the defendant, for which sum they recovered judgment. The plaintiffs’ bill of particulars and the instructions of the court were printed in the transcript, but were not embodied in the statement on motion for new trial. The thirty-fourth specification of error was, that “there was no evidence to sustain the claim of the plaintiffs as to the second, third, and sixth items in plaintiffs’ bill of particulars.” A number of the specifications of error related to the giving and refusing of instructions. The further facts are stated in the opinion of the court.

Ezra Cross, and A. W. Blair, for Appellant.

Paris & Goodcell, for Respondents.

The statement on motion for a new trial contains no specifications of insufficiency of the evidence. It does specify thirty-five errors alleged to have been committed by the court during the trial of the cause. The examination of these specifications reveals the fact that about thirty of them are without objection or exception entered or reserved; and there is no merit in the others. A bill of particulars is no part of the judgment roll, neither are the instructions, and they are not incorporated into the statement herein. The statement does not purport to contain all the evidence. In fact, it cannot be said that it contains any evidence. It does not show, except by inference, that anything related in the statement occurred at the trial, or that any witness was sworn.

Judgment and order affirmed.

Searls, 0. J., McFarland, J., Sharpstein, J., and McKinstry, J., concurred.