Tibbets v. Riverside Banking Co.

32 P. 174, 97 Cal. 258, 1893 Cal. LEXIS 525

Opinion

The Court.

The plaintiffs have filed a petition here purporting to be made under section 652 of the Code of Civil Procedure.

Petitioners say that they prepared a statement of the case and bill of exceptions, served it on counsel for defendants, and presented it to the judge of the superior court for settlement; “that said judge refused to sign said bill of exceptions, and still refuses to sign said bill, or any bill, according to the facts of the case.” Therefore they pray “ that this court majr sign and seal said bill of exceptions, as provided for under section 652 of the Code of Civil Procedure.” Petitioners have mistaken the provisions of said section. That section only provides that where, upon the settlement of a bill of exceptions or statement, the judge refuses to allow an exception, the party may petition this court to prove said exception. But in this case petitioners merely show that they presented quite a lengthy statement on motion for new trial to the judge of the superior court, and that he refused to sign it, or any other bill of exceptions. In such case, the judge can be compelled by mandamus to settle the bill or statement; but this court has not the power, nor is it its duty, to tgke the place of the judge of the lower court and perform the duty of settling the statement.

The petition is denied.