Fairbanks, Morse & Co. v. Superior Court

Petitioner applies for a writ of mandate for the purpose of compelling respondent to allow petitioner to amend a document theretofore served and filed by petitioner as a draft of a bill of exceptions. The question as to whether or not the peremptory writ should be granted is raised by respondent’s demurrer to the petition.

The following facts appear from the allegations of the petition: On April 1, 1916, Pearl Meeker and William McGuire commenced an action against petitioner and Samuel Bowen in the Superior Court in and for the county of Fresno for the conversion of certain drilling machinery and equipment, and after a lapse of five years the action was brought to trial. On October 31, 1921, the court ordered judgment for the plaintiffs therein, but on the same day set aside the submission and granted an order to take further testimony upon the issue of the value of the property alleged to have been converted. The action was then allowed to lie dormant for another five years, at the end of which time, to wit, on January 28, 1927, an order of reference was applied for and granted directing a court commissioner to take the testimony relating to the value of the property which the court indicated in 1921 had been converted. Following the taking of such testimony, and on June 10, 1927, the report of the commissioner was adopted by the court and on June 24, 1927, findings and judgment were entered in favor of plaintiffs and against petitioner, the action having been previously dismissed as to the defendant Bowen. A motion for a new trial was thereafter denied, and on August 25, 1927, petitioner appealed from the judgment. On September 24, 1927, the last day granted under the court’s order extend

The purpose of a bill of exceptions, as the authorities hold, is to preserve a record of the rulings and decisions of the trial court for the benefit of the appellate tribunal (Bedan v. Turney, 99 Cal. 649 [ 34 Pac. 442 ]; In re Moore, 78 Cal. 242 [ 20 Pac. 558 ], and the Code of Civil Procedure requires that the draft of the bill shall contain all of the exceptions and proceedings taken upon which the party relies (sec. 650). Although no particular form of exception is necessary, still when the exception is to the decision upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient; and the objection must be stated with so much of the evidence or other matter as is necessary to explain it; however, only the substance of the reporter’s notes of the evidence need be set forth (sec. 648) ; furthermore, the proposed draft must be au

A copy of the draft presented in the present case is attached to the petition herein. It consists of copies of the following documents: the pleadings, decision, and judgment in the action; notice of and undertaking on appeal; notice of intention to move for a new trial and notice of denial of the motion; written objections to the cause being set for trial, dated May 7, 1926; notice of motion of petitioner and its co-defendant, dated January 27, 1927, to dismiss said action for want of prosecution and two affidavits supporting said motion; then follows several typewritten pages headed “Testimony of witnesses at the trial,” and at the end of the draft is inserted a copy of a lease signed by Clara Curry as guardian of Pearl Meeker, a minor, William L. McGuire and C. H. Holbrook, Jr.

It is evident from an inspection of the draft that as served and filed it wholly failed, for several reasons, to comply with well-established legal requirements. It did not purport to be a statement of the proceedings which took place before the trial court, nor was any attempt made whatever to set forth therein, as the code requires, any of the exceptions or proceedings taken at the trial upon which petitioner would rely on appeal. The insertion of copies of the documents constituting a portion of the judgment-roll, and of the notice of appeal and undertaking, was not essential to nor did any of them properly form a part of the bill of exceptions (In re Robinson, 106 Cal. 493 [ 39 Pac. 862 ]; White v. White, 112 Cal. 577 [ 44 Pac. 1026 ]); and regarding the written objections to setting the cause for trial and the motion to dismiss for want of prosecution, the proposed draft does not show that either was ever filed, presented, or ruled upon; nor does it show in what manner, if at all, the copy of the lease inserted at the end of the draft was used in connection with the case. Moreover, two of the grounds urged in support of the motion for a new trial were: errors of law occurring at the trial and excepted by the defendant, and insufficiency of the evidence to justify the decision and that it was against law; and no assignments of error or specifications of insufficiency of evidence are in

As to the section of said draft relating to the testimony of the witnesses, a reading thereof discloses that instead of being a recital in the usual narrative form of the testimony adduced at the trial, the narratives it does contain consist merely of statements prepared by persons claiming to have been witnesses at the trial as to their recollections of the nature of the testimony given by them, or of their recollections of transactions connected with the case and not testified to, and in some instances of statements made by persons present at the trial as to their recollections of what other witnesses testified to; and interwoven in these narratives are the opinions of said witnesses as to the weight and effect of the testimony they had given, such as the following: “That he offered certain documentary evidence in support of this statement”; “All of this testimony went to show that machinery and equipment was in a very dilapidated condition,” etc.; “He testified further in corroboration of the testimony of Robert M. Cook as to the dilapidated condition of the machinery”; “I cannot exactly recall what my testimony was at the time of the trial with reference to an accounting made by Fairbanks, Morse & Company to me of the property sold, but I recall . . . ,” etc.; also “To the best of my recollection I was of the opinion that the Creme Petroleum Company had every right to dispose of the personal property on the premises and that the Creme Petroleum Company itself would have done so had not Fairbanks Morse & Company levied the attachment.” Moreover, no attempt whatever was made to insert any part of the evidence offered or received in support of plaintiff’s case nor even to mention the fact that any such evidence was adduced.

In explanation of the incomplete form in which the draft was presented for settlement, the petition alleges that the phonographic reporter officiating at the trial of the action in 1921 died in October, 1925, which prevented petitioner from obtaining a transcript of the testimony; that consequently petitioner endeavored to prepare a record by locating the various witnesses who testified at the trial and

Even assuming that after the expiration of the time allowed by law to serve and file a bill of exceptions, it was within the power of the trial judge to grant petitioner permission to revise and amend the defective draft already presented, we find no ground upon which to base a fair conclusion that there has been an abuse in the exercise of such power, for, in the first place, it would seem from the facts above stated that petitioner had an opportunity to procure transcripts of the testimony relating to both issues of fact; and, secondly, other than making an abstract offer to amend the draft, petitioner made no showing before the trial judge under section 473 of the Code of Civil Procedure or otherwise, so far as the record reveals, as to how it proposed to amend said draft, nor as to the nature or form of the amendments it desired to submit; consequently the trial court was not advised, nor are we from the record before us, whether the amendments petitioner proposed to offer would have added to or detracted from the legal sufficiency of the draft. Irrespective of petitioner’s intentions, however, and having in mind the total insufficiency of the present draft, we are in accord with the conclusion reached

For the reasons given the demurrer to the petition is sustained without leave to amend, and the alternative writ heretofore issued is discharged.

Tyler, P. J., and Parker, J., pro tem., concurred.

Petitioner’s application to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 24, 1928.

All the Justices concurred.