Jackson v. Puget Sound Lumber Co.

Beatty, C. J. This is a motion to dismiss an appeal from the judgment, upon the ground of failure to file the transcript within forty days after the appeal was perfected. The motion is resisted upon the ground that there is an unsettled bill of exceptions in the case awaiting the action of» the trial judge. It appears that in the superior court the cause was referred to a court [634] commissioner, to take an account and report findings, etc. Upon the filing of his report, and after various proceedings in court, a judgment was rendered in favor of the plaintiff in October, 1895, from which the defendant has appealed. In due time after judgment the defendant served upon the plaintiff a draft of his proposed bill of exceptions, which included a statement of the testimony taken, and other proceedings had before the referee, as well as the proceedings in court subsequent to the filing of the referee’s report. Amendments to this proposed bill were suggested by the plaintiff, relating exclusively to the proceedings before the referee, and the draft and the amendment were sent to the referee for settlement. He allowed certain of the proposed amendments, whereupon the bill was engrossed b)r defendant, and its allowance certified by the referee. There is some conflict in the evidence as to what next occurred, but the most positive and certain testimony is to the effect that the referee, without notice to the defendant, filed the bill, as settled by him, without presenting it to the superior judge for settlement and allowance as to the matters which took place in court. When this was discovered by appellant (and he made the discovery while printing his transcript, and before the time to file it had elapsed), he requested the judge to add his certificate of allowance to the bill, and until that should be done suspended the work of printing. The judge took this application under advisement, and finally, after the expiration of forty days from the filing of the bill of exceptions, declined to certify it, upon the sole ground that the filing of the bill in the clerk’s office left him without the right or authority to take further action. In this we think the trial judge erred. The defendant had done all that the law required him to do, and was entitled to have his bill of exceptions certified; for otherwise it could not avail him in this court. The statute, it is true, directs that the" bill shall be filed after it is signed by the judge or referee, with his certificate [635] that it is allowed (Code Civ. Proc., sec. 650); but it is not to be concluded from this provision that if the settled and engrossed bill of exceptions happens to be filed with the clerk, by inadvertence of the judge or referee, or even of the party seeking its allowance, before it has been properly certified, the right to a proper certificate is forever lost. On the contrary it ought to be considered that such filing is premature and unauthorized, and, if a timely request is made for the certificate of allowance, it should be granted, and the bill refiled. There is nothing in the statute which conflicts with this most reasonable conclusion, nor is anything to the contrary decided in Keller v. Lewis, 56 Cal. 469, or Adams v. Dohrmann, 63 Cal. 419. The latter case, indeed, was not authority for anything, because a rehearing was ordered by the court in Bank, and only set aside because it proved to have been granted one day too late. We think the trial judge should settle and allow the bill of exceptions according to the facts, notwithstanding the premature filing of it, and that the motion to dismiss the appeal should be denied. It is so ordered. Henshaw, J., Harrison, J., and McFarland, J., concurred.