#### Edwards, respondent, *v.*Tracy, appellant.

*Pbactice*— settlement *of statement by successor of judge.*The Civil Practice Act, which provides that the judge or court shall settle the statement on appeal, authorizes the successor of the judge who tried the cause to settle the statement.

Same — *notice of amendment to statement.*A party who fails to file amendments to a statement on appeal, after he has been notified that the same has been filed, is not entitled to notice of the time when the same will be presented to the court for settlement.

Same — *statement settled in vacation.*The statement on appeal can be settled in vacation by the judge who tried the cause.

*Ajypeal from Fvrst District, Gallatin Gounty.*

The respondent filed a motion to strike from the transcript the statement of the evidence. This action was tried in March, 1872, *23by Murphy, J., without a jury, and tbe statement on this appeal was settled by Servís, J. (who was tbe successor of Murphy, J.), at a subsequent term. Tbe statute, which is referred to in tbe opinion, contains tbe following provisions:

' Tbe appellant, who prepares a statement of tbe case, must “ file tbe same with tbe clerk of tbe court, and give notice to tbe opposite party, or his attorney, of such filing. Tbe respondent may, within five days thereafter, prepare amendments to such statement, and file tbe same, and serve notice thereof on tbe opposite party. Tbe statement and amendments which may be filed shall be presented to tbe judge or court, upon notice of two days to tbe opposite party, and a true statement shall thereupon be settled by tbe judge or court. If no amendments are filed, tbe statement may be presented to tbe judge or court without any notice to tbe respondent.” Civ. Pr. Act, § 371. "When a party omits to propose amendments, be shall be 'deemed to have agreed to tbe statement as prepared; “but tbe judge who beard tbe cause shall, notwithstanding such * * * implied agreement, have power

to correct any misstatement of facts, or of bis rulings, which such statement may contain.” Civ. Pr. Act, § 372. “Tbe judge before whom the cause was tried ” may enlarge tbe periods of time above limited. Civ. Pr. Act, § 373. “ Tbe statement, when settled by tbe judge, shall be signed by him, with bis certificate that tbe same has been allowed, and is correct; when tbe statement is agreed upon by tbe parties, they, or their attorneys, shall sign tbe same, with then certificate that it has been agreed upon by them, and is correct.” Civ. Pr. Act, § 374.

S. Word and Pag-e *&*ColemaN, for tbe motion.

J. J. Davis and EL N. Blaxe, contra.

Wade, O. *J.*

This is a motion by tbe respondent, wherein be seeks to have stricken from tbe transcript ah that portion thereof which purports to be a statement of tbe evidence adduced upon tbe trial for tbe following reasons:

• First. That it does not appear that notice of tbe fifing of the statement was given to tbe opposite party or bis attorney.

*24Second. That it does not appear that tbe opposite party bad any notice of its presentation to tbe judge for settlement; and

Third. That it does not appear that tbe statement was agreed to by the parties, or settled by tbe judge as required by law.

This cause was tried in tbe court below at tbe March term thereof, 18Y2, and tbe statement was settled during tbe March term, 18Y3, of said court, but, in tbe meantime, tbe judge who tried the cause bad vacated bis office and bis successor bad been appointed, and tbe successor settled and signed tbe statement on appeal.

It is claimed, on behalf of respondent, that, because tbe judge who tried tbe cause did not settle tbe statement, and that it was settled by bis successor in office, therefore tbe statute which provides that tbe statement and amendments shall be presented to tbe judge or court, upon notice to tbe adverse party, and shall be settled by such judge or court, has been violated.

If it were tbe law that only tbe person acting as judge, who beard or tried tbe cause, could settle tbe statement therein, then tbe administration of justice would be subjéct to many accidents, for tbe death, removal from office, or other disability of tbe judge who tried the cause, would forever deny to the party bis right of appeal; so that if a judge departs tbis life, or if bis official life is ended by a political change in tbe government, or if a judge should be removed for tbe reason that be was corrupt in bis office, or was incompetent to discharge tbe duties thereof by reason of mental imbecility, or want of education, or knowledge of bis profession, — yet at tbe time such judge so vacates bis office, or is removed therefrom, all causes pending in bis district on statement for appeal, must fail, if tbis statute can be construed as contended for by tbe respondent.

Our view of tbe statute is tbis, that, by tbe use of tbe word *“*judge ” instead of “court,” it authorized a judge in vacation to settle a statement, and we bold that, however many changes there may be as to tbe individual who holds tbe office of judge, yet there is no change in tbe office, and no vacation therein. The office is continuous, and tbe officer, for all legal purposes, is always tbe same.

Tbe judge’s commission may expire, but if it does be bolds *25over -under the Organic Act until bis successor is duly appointed and qualified, so that the ofiice and officer continue, although the individual who occupies the position may change. It, therefore, follows that whatever act might be legally done and performed by the judge who tried the cause, may also be done by his successor in office, for, to all legal intents and purposes, they are one and the same individual.

It is objected that no copy of the statement was served upon the adverse party, and that such party had no notice of the application to the judge or the court for a settlement of the statement.

The transcript discloses that, immediately after the assignment of errors, and on the same paper, there is the following, “ Received a copy of this paper,” which receipt is signed by the attorney for respondent, and properly dated. The paper upon which this receipt is signed has no title, no caption or heading or beginning, except it be the title and caption at the commencement of the statement, where the names of the parties and the court are given, and we think it reasonable to presume that a copy of the statement was attached to this paper when it was receipted for by respondent. This must have been the case in order to have given the paper any significance whatever.

If this supposition is correct, then no notice was necessary when the statement was presented to the judge for settlement, for the reason that no amendments to the statement had been filed by the adverse party, and when this occurs, no notice is necessary by the terms of the statute.

This statement was presented for settlement in open court, and there being no amendments filed to the statement, and the adverse party having notice that the statement was filed, and having failed to file any amendments, then no notice to such party was necessary when the statement was presented for settlement; and no notice being necessary, the fact that the record fails to' show that such party was present before the judge is not material.

The motion is overruled.

*Motion, overruled.*