Cox v. McLaughlin — 2 Cal. Unrep. 858

Majority

p. 858

COX v. McLAUGHLIN.

No. 12,220;

May 1, 1888.

18 Pac. 111.

Headnote

Bill of Exceptions—Necessary Contents.—Under Code of Civil Procedure of California, section 648, providing that, where an exception to a decision is on the ground of the insufdeieney of the evidence to justify it, the objection must be stated, with so much of the evidence or other matter as is necessary to explain it, a bill of exceptions which merely sets forth the other findings of fact, and that such facts are established by the evidence, is not properly a bill of exceptions, stating evidence in compliance with above statute.

APPEAL from Superior Court, City and County of San Francisco; J. F. Sullivan, Judge.

Code of Civil Procedure of California, section 648, provides “that no particular form of exceptions is required; but when the exception is to the verdict or decision upon

p. 859

the ground of the insufficiency of the evidence to justify it, ... . the objection must be stated with so much of the evidence .... as is necessary to explain it, and no more. Only the substance of the reporter’s notes of evidence shall be stated.” Action by Jerome B. Cox against Kate D. McLaughlin, executrix of Charles McLaughlin, for services rendered and materials furnished in grading a railroad. Judgment for plaintiff. Plaintiff appeals.

D. M. Delmas and Henry E. Highton for appellant; Wilson & Wilson (L. D. McKisic of counsel) for respondent.

This appeal is taken by the plaintiff from the judgment, which was in his favor; and the point is made that a portion of one finding is not sustained by the evidence. The judgment must be affirmed, so far as this appeal is concerned—First, because, if we can take the facts stated in the bill of exceptions as the evidence, it fully sustains the finding; and, second, waiving the objections that the appeal was not taken in time, there is no bill of exceptions stating the evidence. The bill of exceptions merely sets forth other findings; proceeds to state that such facts were established by the evidence. This is not a statement of so much of the evidence as may be necessary to explain the point made. It is not a statement of evidence at all, but a general conclusion that certain facts were established by the evidence. This is not a compliance with the statute. It is really an effort to array one portion of the finding against another. The judgment is affirmed, subject to the appeal on the part of defendant.