Whitmore v. Harris

Merritt, C. J. : This is an appeal from an order or judgment of the Third District Court refusing and denying a petition for a writ of mandate. The facts are fully stated in an opinion of this court, just handed down, on an appeal from an order dismissing and denying a motion for a new trial, in the case of Elliot v. Whitmore, 37 Pac. 463, and the questions determined in that case are decisive of- this. The time for serving -amendments to the proposed statement on motion for a. new trial having expired, and no amendments proposed, it was the duty of the referee to sign the statement; and, having refused to do this, the writ asked for should have been granted. Lewis A. Scott Elliot, the plaintiff in the action to which this application for the writ of mandate relates, having appeared by counsel and resisted the application for the writ, costs should be awarded against him, instead of the referee. 2 Spell. Extr. Rel. § 1708; People v. Bacon, 18 Mich. 247. The judgment or order appealed from should be reversed, with costs against Lewis A. Scott Elliot, and the cause remanded, with directions to grant the writ as prayed. MINER and Smith, JJ., concur.