The record-union., 1891-01-21
For respondent, A. L. Rhodes, Wilson &
Wilson.
IN BANK.
d. NJ. VANCE, Petitioner,

D. NJ. VANCE, Petitioner,
SUPERIOR COUNT OF SACRAMENTO Is, ,936.
| COUNTY, AND J. w. ARMSTRONG
| JUDGE, Respondent.
| This proceeding is in the form of an original
petition to this court, in which it is stated
substantially that the petitioner Vance-was IL
defendant in u certain action in the court OF
respondent: that Judgment having been rem
Gered against him in said action, he presented
10 the respondent, Judge of said court, 81 draft
OF u bill OF exceptions which, il is averred.
contained u true statement of the proceedings
and evidence in said action; that the said
Judge changed said draft by striking out GER
tain things from its statement of said proceed
lngs and evidence, and inserting certain other
things therein, and settled said bill as so
amended by him; and that the amendments
made by said Judge were incorrect and untrue.
Ihe prayer OF the petition is that this court
will allow and settle said bill OF eNcep-
tons as set forth in the printed pages of
inns petition" The printed pages of the Pc
tition contain the entire draft of the bill of
exceptions which purports to state all the pro-
ceedings and evidence in the action referred to-
and the written part shows the amendments
made by the Judge before the settlement The
amendments do not appear to us 10 be mate
rial; and yet they may have some import
ance which does not appear here.
lfthis proceeding can be maintained at all
it must be by virtue OF Section G52 Code of
is as follows: "If the Judge in any case REUSE
TO aitoU an erceptior in accordance with the
facts the party desiring the bill settled may
prove e Now shf nte 6oa5 to
ent upon the face of this language that the
petition must be based upon the refusal of the
judge TO allow an exception which is .'An OBJ
lection upon matter of law to a decision
made r by a. court, tribunal Judge or
other judicial officer" &C.. c. p, 646); but in
the petition now before us there is no aver
ment, or showing, or pretense that the re-
spondent refused to allow any exception what
ever, or that the proceedings or evidence
about which the dispute occurs had any refer
once whatever to execution which he
fused to allow. The petitioner, therefore,
clearly fails to bring himself within the Ian
guage of the section. 1t is argued however,
by petitioner, as it has been argued by counsei
| i'll other recent cases, that there should be no
marrow construction given to Section 652,
but that this court should coustrue it to eS-
tend to every Imaginable case where in II
statement on motion for 4 new trial. or (Which
is practically the same thing in q long bill OF
exceptions covering the whole trial. there is Il
| dispute between the attorney and the presiG-
ing judge as to what evidence had been intro
duced, or what in other respects had occurred
at the trial. This is an attempt, without war;
rant in the canonS of construction, to assume
| that the Legislature meant more than it said.
No Interpretation can be justly called '.nar-
| row. which follows statutory language, which
| is itself ca ipdUstfid narrow. When Sec
| tion 652 was enacted the statutory general law
lin accordance with the Inherent distinction
| between trial and appellate courts-was, that
| the Judge of the trial court alone should make
/ that record which otherwise would not be
record. by settling statements and bills of ex-
ceptions; and that the appellate court should
act upon records as they came to 1t. If the
Legislature had intended to entirely over
appellate down into the trial court to
| construct for the latter an entire
history of a trial there, it certainly
| would not have confined itselfto the .snarrow''
language which it employs. But it evidently
| approached the subject with the greatest eau
ton. 1t said nothing about statements on
| motion for new trial. or about what evidence,
or what history of proceedings generally
| should go into statements or general bills of
| exceptions, nor did it undertake to give this
| court general power TO reconstruct such state
| ments or bills or determine what evidence
should go into or be stricken out of them. 1t
| refers solely to case where the Judge is
charged with having refused to allow eX-
| ception; that Is. where party claims that he
| made IAN objection upon a matter Of law to n
decision made" by the court, and tool, an e1-
! ception to the decision, and the court refuses
to certify in bill or statement that such an
exception was taken, or that such an occur
renee took place In such q case the
court that he did take such exception, and
may prove, no doubt, in that connection, suf-
1icient surrounding facts to show what the
point OF the exception is. If he succeed
in making his proof his exception will be
here. put into a BILL, certified by this
court t through its Chief Justice, and
will take its place among the other things
which constitute the record. But when the
| code speaks of an exception which the Judge
has refused to allow, it necessarily refers TO an
exception which the judge had the power to
| allow, and Section CO.. has no application ey-
cept where a judge has refused to allow such
an exception. If be an evil that statement
Ct what evidence was introduced made by Il
! judge who presided over the trial and who
acts in his judicial character and under his
| judicial cath, cannot be overcome by the con-
| Trajectory statement Of somebody else why il
must be put into the large class of evils real or
| imaginary which this court has 10 jurisClic-
| tion to remedy. These views are in accord
ance with Landcrs VS.. LanGers, So Cal. 4SO
| They are also expressly held in the recent case
| of Hyde VS.. Boyle ca Pac. Rep, p. .059) al
! though in the latter case il does not appear
that the opinion was concurred in by Il ma
jorty of the court. And for the reasons above
stated the application in the ease at bar must
| be dismissed.
II may be noticed that counsel for respond
ent raises here, for the first time, the point
that section 652 is unconstitutional Tor the
reason that By 1t the Legislature undertook to
confer upon this court powers and to impose
upon it duties, rot embraced in any of the cat
egories of jurisdiction enumerated in that Fart
of the constitution by which this court is ere
ated. But as the case is already disposed of
we do not care to consider the constitutional
question at this time.
The prayer of the petition is denied, and the
! proceeding dismissed. MCFARLAND J.
We concur
| WORKS, j.
| SUARPSTEIN, j.
! / concur in the order.