No. 1,633.

#### THE PEOPLE OF THE STATE OF CALIFORNIA, (on the Relation of George F. Sharp.) Petitioner, *v.*WASHINGTON BARTLETT, Respondent.

Practice. — Statement on Motion foe New Tkiad. — Exhibits.—Exhibits referred to in a statement on motion for a new trial, but which are not copied into the statement, will be deemed to have been considered on the hearing of the motion.

*143Idem. — A copy of the statement on motion for a new trial which is made a part of the statement on appeal from the order granting a new trial, and in which certain exhibits are referred to and directed to be incorporated therein but are not inserted, does not tend to show that such exhibits • were not considered on the hearing of the motion for a new trial.

Glebe oe Distbict Cotjbt. — Duty on. — It is not the duty of the Clerk of the District Court to engross the statement either on new trial or appeal; nor is it his duty when a copy of a statement is required to insert any document which is merely referred to and directed to be inserted.

Idem. — It is the duty of the Clerk to furnish or certify true copies of papers on file in his office, such as the statements on appeal and on new trial, and the exhibits on file in his office: but he is not required to certify a document made up by incorporating one or more of such papers within another.

Idem. — Bemedy to Compel Clebe to make Cebtieicate. — The proper remedy to compel the Clerk to certify to the correctness of a transcript is by motion in the Court where the-record in the cause remains and not-by mandamus.

APPLICATION for a writ of mandamus to issue to the Clerk of the District Court of the Fourth Judicial District of the State of California, in and for the City and County of San Francisco.

The other facts are stated in the opinion.

*Geo. F. Sharp, in pro. per.*for the writ.

The ground of the relator’s appeal is, that when the Court granted Bagley a new trial, it did not have any statement before it upon which in law it was authorized to act, because the exhibits upon which the relator’s defence was founded, and the judgment rendered, were not copied in the statement, or in possession of the Court.

Without discussing the merits of *Bagley*v. *Sharp,*in this proceeding, we will say, that if these facts are established, the action of the Fourth District Court was clearly erroneous, and the order granting the new trial must be reversed.

The respondent is attempting to compel the relator to falsify his own statements, and present to this Court a record entirely different from that upon which the lower Court acted in making the order complained of% What power respondent or counsel possess to alter a paper filed *144in a canse tbat bad been finally acted upon by tbe lower Court, we cannot conceive. Before tbe statement was pre-sentecl to tbe Court, Bagley bad tbe right to engross it; but after tbe Court bad passed upon it, tbat action must be reviewed upon tbe document, as it existed at tbat time, and not as afterward conceived it should have been made,

If this' is not true, what remedy will tbe relator have ? Tbe Court, without any showing whatever, upon an *ex parte*statement, manifestly not containing tbe relator’s evidence, sets aside a judgment recovered by him; puts him to tbe expense, loss of time and annoyance of another trial. Knowing be has been aggrieved, be applies to this Court for redress, but is told tbat be cannot present bis cause here, unless be also presents evidence which tbe Court did not have before it at tbe time tbe injurious order was made.

If this was *certiorari,*instead of *mandamus,*would respondent certify tbe Statement on Motion for New Trial, as bo finds it on record, full of blanks, or nicely doctored, complete and changed as be now desires it? And if bis duty compels him to certify tbe papers in one case, as be find them on file, be must in all.

As we said on tbe opening, if relator bad engrossed this statement on appeal in tbe same way as be has now, and then filed it, the respondent would not and could not have made tbe least objection to certify it. An engrossment is required simply to have tbe statement complete, when tho Court is to pass on it. In our case, it was engrossed by inserting it in tbe transcript, as we have, and tbe record is complete for this Court. What difference, then; can it make whether tbe statement on appeal is engrossed, then filed, and then copied in tbe transcript or engrossed directly in tbe transcript. It seems like a distinction without a difference. There is no pretence tbat tbe statement on appeal is not correctly engrossed. Bespondent is seeking, however, to make it appear tbat tbe statement on motion for new trial was engrossed when in fact it was not.

*Campbell, Fox*& *Campbell,*against tbe writ

*145
      *First*— When it appears from tbe bill of exceptions signed by tbe Judge, tbat tbe motion for a new trial was based on statement, counter statement, and affidavits, it cannot be objected tbat tbe statement was not settled. *(Williams*v. *Gregory,*9 Oal. 76.)

When a party appears and argues a motion for a new trial, be cannot afterward object tbat tbe statement was not agreed to by bim, and tbat it was not settled by tbe Judge. *(Dickinson*v. *Van Horn,*9 Oal. 207.)

Tbis was tbe defendant’s position, be did submit tbe case. He now objects tbat there was no proper statement.

Tbe real objection, as respondent understands it, is, tbat tbe various exhibits were not copied into tbe statement.

Section 195, Practice Act, says: “On tbe argument reference may also be made to tbe pleadings, depositions, and documentary evidence on file.” It is to be presumed if these could be referred to on argument, they could be examined by tbe Court.

Tbe respondent insists tbat in tbe statement on appeal these documents should be inserted, and tbat is one ground of bis objection to certifying tbe transcript.

In a statement for a new trial, tbe evidence may be simply referred to, and need not be contained in tbe statement itself. It is not so in a statement on appeal, in which tbe evidence, if relied on, must be set out. *(Dickinson*v. *Van Horn, supra.)*Respondent, therefore, contends tbat in tbe statement of relator on appeal all of said exhibits should have been inserted.

*Second*— Defendant in preparing bis transcript on appeal, has pursued tbe same course which plaintiff followed in preparing bis statement on motion for new trial, and has left out tbe substantial part of it. Neither respondent nor plaintiff objects to tbe transcript on appeal containing tbe statement on motion for new trial, with tbe documentary evidence referred to therein inserted, notwithstanding tbe blank and “Here insert,” which are found in tbe original statement on appeal. And it is claimed tbat tbe cases cited establish tbis as tbe true course, and tbat to insert a copy *146of tlie statement on motion for a new trial, omitting tbe exhibits, is not a compliance with tbe letter or spirit of tbe practice as defined by statute and decided by tbis Court.

*Third*— Tbe relator in tbis proceeding lias mistaken bis remedy. Prac. Act, Sec. 338, speaking of statement on appeal, says: “If no amendments are served (as here) tbe statement may be presented to tbe Judge for settlement without any notice to tbe respondent.” ' Tbis course should have been pursued. If we are met by tbe next section, 339, that tbe statement served on plaintiff’s attornej^ is deemed agreed to, our answer is: What statement? If literally tbe one filed without filling in tbe statement on motion for a new trial, it will not avail relator, nor bring tbe merits of tbe case before this Court. If relator is allowed to insert tbe statement on motioB for a new trial, be must insert it with tbe exhibits referred to. And to tbis we do not object; but we submit that be cannot insert tbe one and not tbe other. And tbis is tbe extent of tbe contest, and is tbe true distinction in tbe cases cited between statements on motion for new trial and on appeal.

Bhodes, C. J.,

delivered tbe opinion of tbe Court, Temple, J., Cbockett, J., and Wallace, J., concurring:

In tbe action of *Bagley*v. *Sharp,*tbe defendant having recovered a verdict, tbe plaintiff moved for a new trial; and a new trial having been granted, tbe defendant appealed from that order. The defendant filed a statement on appeal, and in bis statement, reference is made to tbe plaintiff’s statement on new trial, and it is directed to be, but is not in fact, inserted therein; in other words, tbe statement on appeal, isa skeleton statement. In preparing bis transcript on appeal, tbe defendant copied into bis statement on appeal tbe statement on new trial, at tbe place where, in tbe skeleton statement it is directed to be inserted, and presented tbe transcript to tbe respondent, as tbe Clerk of tbe District Court, and requested him to certify to it as a correct transcript of tbe record, but tbe respondent refused. Tbe petitioner *147seeks, b j tbis proceeding, to compel the respondent to certify that suck transcript is correct.

The respondent denies that the transcript presented to Mm is correct. The canse was submitted without any evidence having been offered upon the issue as to the correctness of the transcript, and we must treat it as incorrect in the respects mentioned in the return. This is a complete answer to the application for the writ, for the Clerk will not be required to certify an incorrect transcript.

The real purpose of this proceeding is to cause the statement on new trial to be inserted in the statement on appeal, at the place therein where occur the words: “ Here insert a copy of said statement, ” and in that manner, to show that the motion for a new trial was heard on a skeleton statement. There are several reasons why the relator should not have the aid of the writ of mandamus in this matter. The errors specified in the statement on appeal are, in substance, that the Court erred in granting a new trial on the skeleton statement; and the statement on appeal presents no fact other than that the motion for a new trial was heard upon such skeleton statement, without considering the exhibits which were therein referred to. It is difficult to conceive of a document more useless than a statement on appeal which merely refers to or embodies the statement on new trial, and specifies as the ground of appeal that the Court erred in granting a new trial on such 'statement. Such practice is not permissible. The practice Act prescribes a plain and simple mode, for the presentation to the appellate Court, of the questions arising upon the statement on new trial.

The exhibits referred to 'in the statement on new trial, but which were not copied into it, will be deemed to have been considered on the hearing of the motion for a new trial. *(Kimball*v. *Semple,*31 Cal., 665.) The statement on appeal alleges that they were not so considered, but this statement is neither agreed to by the attorneys for the respective parties, nor settled by the Judge who heard the motion for a new trial. A copy of the statement *148on new trial, in which the exhibits are referred to and directed to be incorporated therein, will not tend to show that such exhibits were not considered, on the hearing of the motion for a new trial.

It is not the duty of the clerk to engross the statement, either on new trial or on appeal; nor is it his duty, when a copy of the statement is required, to insert any document which is merely referred to and directed to be inserted. It is his duty to furnish or certify true copies of papers on file in his office, such as the statements on appeal and on new trial, and the exhibits on file in his office; but he is not required to certify a document, made ujo by incorporating one or more of such papers within another.

Had the transcript, when presented to the clerk, been in such condition that he ought to have certified to its correctness, the petitioner had an adequate remedy, by motion in the Court where the record in the cause remained, to compel the clerk to make the requisite certificate.

The petitioner has neither authority nor necessity for using the name of the people in this action.

Mandamus denied.

Speague, J., expressed no opinion.