The pretended bill of exceptions was not settled and filed at the time nor in the manner required by the Code of Civil Procedure, §§ 649- 651. (Higgins v. Mahoney, 50 Cal. 444.) The appeal taken May 8th, 1878, more than four months before the settlement and filing of the bill of exceptions, took the case out of the jurisdiction of the District Court, and the Judge of the Court had no power to settle or sign such a bill, and his action is void. (Mulcahy v. Glazier, 51 Cal. 626; Smith v. Lawrence, Id. 34.)
It was suggested by the Court at oral argument that inasmuch as the bill of exceptions had been settled and allowed by the Judge, that the intendments of the law were that it was regularly and properly done. It may be that the intendments are that it was presented tothe Judge within the statutory period, but there can be no intendments to contradict the record as to when it was settled and filed.
OPINION Department No. 2, by the Court (from the Bench):
The bill of exceptions in this case shows that, upon the rendition of the judgment in favor of the defendant, the plaintiff requested the Court to make and sign findings of fact, which the Court failed to do, and that findings of fact never have been made or waived, which is made a ground of exception by the plaintiff.
For this error the judgment must be reversed.
Judgment reversed.