Boyd v. Burrel

         The Judge of a Superior Court ought not to alter on motion the statement settled by a District Judge who tried the cause; a refusal to do so was correct, and should be affirmed.

         In settling the statement the District Judge exercised his discretion, and there was no such abuse of discretion as warranted the interference of the Superior Judge; his refusal should be affirmed.

         The assignments of error were purely formal, and were added before the statement was signed.

         Parties may stipulate that the Court pass on the motion before statement is engrossed, and engrossed statement is agreed to. (Thompson v. Connelly , 43 Cal. 636.)

         The District Judge had power to amend a statement after it had been settled and signed for the purpose of adding the formal specifications of error--not to change the facts--or the exceptions. (Valentine v. Stewart , 15 Cal. 387; Loucks v. Edmondson , 18 id. 203; Lucas v. City of Marysville , 44 id. 210.)

         JUDGES: McKinstry, J. Morrison, C. J., and Ross, Sharpstein, Myrick, McKee, and Thornton, JJ., concurred.

         OPINION

          McKINSTRY, Judge

         In Bank. After a motion for new trial had, by consent of parties, been passed upon by the Hon. J. B. Campbell, Judge of the District Court, upon a bill of exceptions amended and settled, but not engrossed--the bill as settled to be subsequently engrossed by the moving party and signed by the said Judge--a dispute arose between counsel as to whether the bill had been engrossed as settled. Thereupon, and on the seventeenth day of June, 1880, it was stipulated " that the bill of exceptions as engrossed by plaintiff, together with the bill as prepared by plaintiffs and the amendments proposed by defendants and the order of Judge Campbell settling said bill, be all sent to Judge Campbell for him to decide if said bill is properly engrossed, and if not properly engrossed to correct the same and sign said bill, as of December 1, 1879, when so corrected."

         Subsequently the Honorable J. B. Campbell, in the stipulation mentioned, to whom was submitted the several papers mentioned, after striking out certain portions of the bill, as engrossed by plaintiffs, certified to the same as correct.

         And afterwards defendants moved the Judge of the Superior Court to strike out a portion of the bill, as the same had been settled and certified correct by the Hon. J. B. Campbell, as aforesaid. From the order denying the motion defendants have appealed.

         In view of the stipulation above recited

         Order affirmed.