Opinion
Rehearing Denied April 5, 1938.
Hearing Granted by Supreme Court May 12, 1938.
Petition by Cordelia St. Clair for a writ of mandate to command Georgia P. Bullock, Judge of the Superior Court of the State of California in and for the County of Los Angeles, to settle a proposed bill of exceptions which was served and filed by petitioner in an action by the petitioner against Malcolm St. Clair in the Superior Court in and for the County of Los Angeles.
Alternative writ discharged and peremptory writ denied.
COUNSEL
Henry E. Phister, of Los Angeles, for petitioner.
Everett W. Mattoon, Co. Counsel, and Douglas De Coster, Chief Deputy, and W. I. Gilbert, all of Los Angeles, for respondent.
OPINION
CRAIL, Presiding Justice.
This is a petition for a writ of mandate to be issued against the superior court of Los Angeles county, Georgia P. Bullock, judge presiding, respondent, to command the respondent to settle a proposed bill of exceptions served and filed by petitioner.
The petitioner is plaintiff in that certain action in the superior court of Los Angeles county entitled Cordelia St. Clair v. Malcolm St. Clair, No. D 124338. The plaintiff served and filed her proposed bill of exceptions to certain proceedings which had transpired in said court, and the defendant also served and filed his proposed amendments thereto. Thereafter the petitioner herein, plaintiff in said action, served and filed her notice of motion to strike the defendant’s proposed amendments, and thereafter the defendant served and filed his notice of motion to strike plaintiff’s proposed bill of exceptions. Thereafter these motions came on for hearing, and the court made its order as follows: "Motion of defendant to strike proposed bill of exceptions of plaintiff and motion of plaintiff to strike proposed amendments of defendant to plaintiff’s bill of exceptions come on for hearing; H. E. Phister appearing as attorney for plaintiff and W. I. Gilbert for defendant. (No reporter.) After argument and consideration by the court the motion of defendant to strike is granted and motion of plaintiff to strike is denied." Petitioner claims that by said order she was deprived of her right of appeal.
To this petition the respondent answers that, "after considering all of said motions, the proposed amendments to said proposed bill of exceptions, and the stenographic report of said proceedings, together with the numerous exhibits submitted to respondent at the trial, she concluded that said proposed bill of exceptions did not contain a full and fair presentation of the evidence relating to the matters specified in said proposed bill of exceptions as errors, and that said proposed bill of exceptions was partial, meager, unfair, and a pretense and a sham, and that in order to present a fair bill of exceptions, it is the belief of respondent that either respondent or the defendant therein would be required to rewrite said bill of exceptions."
Respondent in her answer cites numerous illustrations of the fact that the petitioner’s proposed bill of exceptions does not contain the essentials of a proposed bill of exceptions and cannot be regarded as a proposed bill of exceptions and that it is a sham, and respondent says that, if she were required to order amendment, she would in fact be required in effect to assume the burden of preparing a new bill of exceptions for the petitioner herein.
The duty of the trial court is to settle a bill of exceptions and not to make one. Pacific Land Ass’n v. Hunt, 105 Cal. 202, 38 P. 635; Hearst v. Dennison, 72 Cal. 227, 13 P. 628.
A motion and order to strike a proposed bill of exceptions will lie in a proper case. Dainty Pretzel Co. v. Superior Court, 7 Cal.App.2d 437, 45 P.2d 817. Where a proposed bill of exceptions is lacking in the very essentials of a bill of exceptions, the writ of mandate will not issue. Fairbanks, Morse & Co. v. Superior Court, 90 Cal.App. 410, 265 P. 992.
This is not a case where a court has arbitrarily refused to settle a proposed bill of exceptions, but rather one where, after consideration thereof, the same has been deemed so unfair and so lacking in its essentials as to render correction by amendment impossible. The respondent has furnished this court with a transcript which shows that the proposed bill of exceptions is false in at least one particular and that it is incomplete in many particulars. The burden is upon the petitioner to show that there is no evidence to support the court’s implied finding that the proposed bill is false and merely a sham or pretense and an imposition upon the court, and that the court violated its discretion in striking it, and we have no such showing here. On the contrary, there is substantial evidence to show the falsity of the bill of exceptions and its incompleteness, and to show that the respondent would be required to prepare an entirely new bill in order to make the bill reflect fairly the evidence relating to the errors assigned by the petitioner.
The alternative writ is discharged and the peremptory writ denied.
We concur: WOOD, J., McCOMB, J.