Sheehan v. All Persons, Etc. , 195 Cal. 546 ( 1925 )

THE COURT.

This is a motion, upon suggestion of diminution of the record, to insert in the copy of the bill of exceptions in the printed transcript on file herein certain specifications of insufficiency of the evidence. The motion is supported by certified copies of a purported order of the superior court amending the engrossed bill of exceptions. It appears herein that on July 23, 1924, an engrossed bill of exceptions was stipulated to be correct by written stipulation of the parties appended thereto. On July 26, 1924, it was settled, allowed, and certified to be correct by the judge who tried the case (Mr. Justice Knight of the district court of appeal, formerly a judge of the superior court). Thereafter, on December 11, 1924, there was filed in the trial court an order purporting to amend said engrossed bill of exceptions nunc pro tunc as of July 26, 1924, by inserting therein specifications of insufficiency of the evidence. This order recited that it was made upon the ground that the specifications of insufficiency of the evidence had been omitted from the bill of exceptions through the mistake, inadvertence, and excusable neglect of appellant, and the order was signed "Benj. K. Knight, Judge of said Superior Court, presiding at the trial of the case and who decided the same." The specifications referred to in this order are the ones which are sought by this motion to be inserted in the printed transcript upon appeal, which was filed in this court October 24, 1924. The question of the validity and effect of the order purporting to amend the bill of exceptions may more conveniently and satisfactorily be considered and determined in connection with the consideration and determination of the appeal upon its merits. It is, therefore, ordered that the motion be granted without prejudice to the later consideration upon this appeal of the question of the validity and effect of the order purporting to amend the bill of exceptions.