88. The opinion of the judge of the trial court forms no part of the record on appeal from the judgment. (Schwerdtle v. County of Placer, 108 Cal. 589.)

89. The rule established in previous cases, that where a proposed bill of exceptions is merely a copy of the reporter's transcript, without any effort to reduce it to proper form for the purpose of presenting the questions involved, or where it is a mere skeleton, it may be disregarded, and a settlement of it will not be required, is a harsh and rigid rule, liable to abuse and to operate as a virtual denial of justice to a defendant through the ignorance, incompetency, or indolence of his counsel, and will not be extended to cases not falling strictly within the class to which it has heretofore been held to apply; and even in such cases it would be better as a rule for the judge of the trial court to disregard as far as possible technical objections, and endeavor to settle a bill of exceptions rather than refuse it. (Cohen v. Wallace, 107 Cal. 133.)

90. The object of the statute requiring specifications of insufficiency of evidence is to bring directly before the mind of the court the particular point the aggrieved party desires to be reviewed, and also to give notice to the adverse party of the point of attack, and thereby enable him to produce any additional evidence tending to support the finding of fact assailed by the specification; and where the specification is sufficiently full to meet the purposes of the law, the court should pass upon the sufficiency of the evidence. (Brenot v. Brenot, 102 Cal. 294.)

91. A proposed bill of exceptions to be used on an appeal from a decree distributing the estate of a testator, which attacks certain findings of the court with respect to the "intention" and "meaning" of the testator, which findings depend wholly upon the terms of the will and the recitals it contains, I cannot be held insufficient for a failure to set out the evidence on which the findings are based, if the will is found and recited in full in the findings and decree. (Walkerley v. Greene, 104 Cal. 208.)

92. The account of an administrator is a bill of items and specifications of the insufficiency of the evidence to justify the decision settling the account are stated with sufficient particularity when the evidence is alleged to be insufficient to justify the decision allowing particular items of the account specified in the bill of exceptions. (Estate of Levinson, 108 Cal. 450.)

93. Evidence taken upon the examination of a shorthand reporter as a witness, in reference to testimony claimed to have been given by the defendant upon a former occasion, is necessarily inserted in the bill of exceptions by question and answer in de tail. (Cohen v. Wallace, 107 Cal. 133.)

94. The statement of testimony given by talesmen when sworn upon their voir dire is properly inserted by question and answer in the bill of exceptions. (Cohen v. Wallace, 107 Cal. 133.)

95. While as a rule a bill of exceptions should make as short and succinct a statement of the evidence as possible, either in narrative form, giving its substance, or by stating what the evidence tended to establish, yet no fixed rule can be laid down upon the subject; and in frequent instances it may be necessary to state the evidence by question and answer in order to lay before the court the exact statement of the witness, even though it may not be desired to point an exception, and it must be left largely to the discretion of the trial judge when settling the bill to determine the proper method to be pursued in any given case. (Cohen v. Wallace, 107 Cal. 133.)

96. It is not necessary to incorporate in the bill of exceptions in a criminal case the instructions asked by the defendant and refused by the court, where they are properly indorsed by the judge and become a part of the judgment-roll; nor should the oral charge of the court be inserted in the bill where it has been authenticated by the judge, but, if it has not been so authenticated, it becomes proper to preserve it in the bill. (Cohen v. Wallace, 107 Cal. 133.)

97. Where instructions are properly authenticated by the judge they are a part of the judgment-roll, and do not properly belong in a bill of exceptions; and it is only where an oral charge is given and not otherwise authenticated, or modifications are made in written instructions which it is desired to show, that it is either necessary or proper to preserve instructions in a bill of exceptions. (People v. Gibson, 106 Cal. 458.)

Order refusing supplemental complaint must be incorporated in bill of exceptions. See Supplemental Pleadings, 2.

Defective record, denial of motion. New Trial, 39.

See

b. Serving and Filing; Amendments to. 98. When the trial court has determined that a delay in filing a bill of exceptions has not been unreasonable, its order will not be reviewed upon appeal in the absence of a bill of exceptions setting out all the facts. (Jaffe v. Lilienthal, 101 Cal. 175.)

Presentation for settlement. See Post, VII, 1, c.

99. Where an interlocutory decree in partition has become final by affirmance, only such matters can be reviewed upon appeal from the final decree as have intervened subsequently to the interlocutory decree; and a bill of exceptions upon such appeal need only be served upon such parties to the action as might be affected by a modification of the final decree. (Gutierrez v. Hebberd, 106 Cal. 167.)

100. Whether parties not served with a bill of exceptions with notice of appeal would be affected by a proposed modification of the judgment, or whether a bill of exceptions not served upon them can be considered upon the appeal, must be determined by the appellate court, and the appellant should not be refused the right to ask the appellate court to consider the bill of

exceptions by reason of the possibility that the bill might not be considered upon appeal. (Gutierrez v. Hebbèrd, 106 Cal. 167.) Failure to serve or file, dismissal for. See post, X, 2.

101. When the record is amended by showing a statement of conversation about the jurors not substantially complying with section 1066 of the Penal Code, it cannot prevent a reversal of its judgment for failure to instruct the defendant about his right of challenge. (People v. Moore, 103 Cal. 508.)

c. Presentation to Judge; Settlement; Mandamus to Compel.

It is the duty of the judge to facilitate the appeal. See ante, 87.

102. An unexplained delay of seven months in presenting a statement on motion for a new trial to the trial judge for settlement is fatal, and a settled statement show. ing the fact of such delay, without explanation, and an objection to its settlement on that ground, must be disregarded upon the hearing of an appeal from the order denying a new trial. (Connor v. Southern California Motor Road Co., 101 Cal. 429.)

103. Where the settlement of a statement or bill of exceptions is objected to on the ground that it is too late, it becomes the duty of the appellant to incorporate in the bill or statement the matter, if any, going to excuse his apparent delay, and in case this is not done the bill of exceptions or statement will not be considered upon appeal. (Connor v. Southern California Motor Road Co., 101 Cal. 429.)

104. The written notice of the presentation of a proposed bill of exceptions, and the amendments thereto, to the judge for settlement. provided for in section 650 of the Code of Civil Procedure, is for the benefit of the adverse party, and may be waived by him. (Hicks v. Masten, 101 Cal. 651.)

105. The party or attorney who seeks to avail himself of the want of written notice of the presentation for settlement of a bill of exceptions and the amendments thereto, or of any technicality not affecting his substantial right must be held to a prompt, consistent, and exact assertion of such technical right; and the failure to object on account of such want of notice at the time when the court fixed a date for the settlement, and requested the attorney proposing the amendments to be present, and his assent implied in the statement that he would “be on hand," is a waiver of any other or different notice, and the court should proceed to the settlement of the bill at the time designated, notwithstanding written objections then urged to the settlement for want of written notice of the presentation. (Hicks v. Masten, 101 Cal. 651.)

106. The code should be liberally construed in favor of the right of a defendant in a criminal case to have a bill of exceptions settled by the court; and where, after verbal notice to the district attorney and associate counsel for the prosecution, the set

tlement of the proposed bill of exceptions has been postponed by consent, such postponement constitutes a waiver of the service of two days' written notice of the settlement required to be served upon the district attorney by the provisions of section 1171 of the Penal Code, and, if the court refuses to settle the bill for want of such notice, a writ of mandate will issue commanding it to settle the bill of exceptions. (Van Eman v. Superior Court, 106 Cal. 643.

107. Mandamus will lie to compel the settlement of a bill of exceptions prepared in time, which the judge has refused to settle on account of an objection of the opposite party for want of written notice of presentation, which has been waived by him. (Hicks v. Masten, 101 Cal. 651.)

108. A petition in the supreme court for a writ of mandate to compel the trial court to settle a bill of exceptions should allege in substance that the proposed bill contained every thing that the petitioner honestly believed it should contain in order to make it a fair and proper draft of a bill such as the statute requires him to prepare. (Walkerley v. Greene, 104 Cal. 208.)

109. A writ of mandate will not be granted to compel the settlement of a bill of exceptions where the instrument submitted does not show an attempt to present a fair and bona fide statement of the case. (Pacific Land Association v. Hunt, 105 Cal. 202.)

110. It seems that the right to prove an exception involves the right, when necessary, to prove upon what the exception was based. (Jennings v. Brown. 109 Cal. 290.)

111. Upon an original proceeding brought in this court for the purpose of proving an exception, where there is an irreconcilable conflict in the evidence reported by the commissioner to take evidence as to the truth of the allegations of the petition, the action of the trial court in settling the bill of exceptions as it was settled must be sustained. (Matter of Howard, 108 Cal. 31.)

112. A petition in the supreme court for a writ of mandamus to compel a superior judge to settle and certify a bill of exceptions is not demurrable on the ground that the proposed bill of exceptions contains no request to the judge to settle and certify the bill of exceptions, where the petition shows that the original proposed bill of exceptions was signed by the attorney, and that opposing counsel were notified that it was proposed as a bill of exceptions, and the judge certifies that he was asked to settle and certify it, and refused because it was not in time. and the bill as amended is the bill which the respondent is now asked to settle. (Flagg v. Puterbaugh, 101 Cal. 583.)

113. Where a bill of exceptions, as presented, is not a mere transcript of the reporter's notes, but condenses the statement of the evidence, it is not ground of refusal to settle the bill that a considerable portion of the evidence is placed in the bill of exceptions by question and answer to point

objections and exceptions taken and reserved; and the judge will be compelled by writ of mandate to settle the bill of exceptions. (Cohen v. Wallace, 107 Cal. 133.) 114. The fact that some things are stated in the bill of exceptions which might with propriety be left out of the bill is no ground for refusing to settle the bill, and the very purpose of the statute in requiring a settlement to be had is that such a matter may be eliminated. (Cohen v. Wallace, 107 Cal. 133.)

115. Where the final decree in partition has awarded to the plaintiff a portion of the lands allotted to one of the defendants by an interlocutory decree, and has been affirmed upon appeal, and the bill of exceptions prepared by such defendant upon appeal from the final decree was served only upon the attorney for the plaintiff, and the judge of the court refused to settle the bill because not served upon all the parties to the action in partition, a writ of mandate will lie commanding him to settle the bill, and the court will not inquire upon the application for the writ whether any other one of the parties to the action would be an adverse party, upon whom the proposed bill of exceptions should be served. (Gutierrez v. Hebberd, 106 Cal. 167.)

116. Where a bill of exceptions allowed by the judge after the trial of an election contest consisted of the reporter's notes of the trial, certified by the judge as full, true, and correct in which notes ballots are referred to as contestant's exhibits, regularly numbered and marked with the knowledge and consent of the court, such marking is equiv alent to an express order of the court to that effect, and where the court refused the request of the contestant upon the settlement of the bill of exceptions to certify to the ballots marked as exhibits, or to photographs thereof, upon a petition by the contestant under section 652 of the Code of Civil Procedure to prove the exceptions taken upon the trial, the appellate court will order the ballots to be certified by the judge of the superior court for the inspection of the appellate court. (Jennings v. Brown, 109 Cal. 290.)

117. It cannot be said that the judge of the trial court has allowed an exception to a ruling admitting a certain ballot in evidence, when the ballot itself-the very thing objected to-is excluded from the bill. (Jennings v. Brown, 109 Cal. 290.)

118. Ballots marked at the trial as exhibits are persumed, upon a petition to compel the allowance of exceptions by inserting them, to be in the same condition as when the court ordered the clerk to seal them up and take care of them; and if it should be contended that they are not in the same condition, that matter can be inquired into in the appellate court. (Jennings v. Brown, 109 Cal. 290.)

119. An unauthenticated bill of exceptions consisting entirely of specifications of error cannot be considered. (Houghton v. Trumbo, 103 Cal. 239.)

120. An affidavit of counsel filed in the case long before the bill of exceptions was settled, stating a question which does not appear in the bill of exceptions has no place in the record, and cannot be considered. (People v. Bidleman, 104 Cal. 608.)

121. On an appeal in an election contest, in order that the ruling of the trial court in counting a ballot claimed to have been defectively stamped may be reviewed, either the original ballot authenticated and identified in some appropriate manner, and properly referred to in the bill of exceptions, should accompany the record, or a facsimile copy thereof should be embodied therein. (Lay v. Parsons, 104 Cal. 661.)

122. Upon an appeal from an order refusing to set aside a default, where the bill of exceptions merely shows that such a motion was made and denied, affidavits and other documentary matter printed in the transcript, not made a part of the bill of exceptions nor identified as part of the record, cannot properly be considered. (La Fetra v. Gleason, 101 Cal. 246.)

123. Where a motion for a new trial is made upon the ground of newly discovered evidence, affidavits inserted in the transcript which are not incorporated in any bill of exceptions, nor identified in any way by the judge as having been used and considered upon the hearing of the motion for a new trial, cannot be considered upon appeal. (People v. Fredericks, 106 Cal. 554.)

Papers and evidence not incorporated in the record. See post, VIII, 2.

2. Judgment-roll and What Papers Part of.

124. A motion to strike out parts of pleading and an order denying the same constitute no part of the judgment-roll. (Sutton v. Stephan, 101 Cal. 545.)

125. The affidavit and order for publication of summons required by section 412 of the Code of Civil Procedure constitute no part of the judgment-roll, and their absence does not show the invalidity of the judgment in the light of the judgment-roll. (People v. Thomas, 101 Cal. 571.)

126. The affidavit of publication of summons is part of the judgment-roll: but it is not insufficient merely because made by the "publisher" and not by the "printer or foreman or principal clerk" as required by the terms of section 415 of the Code of Civil Procedure. The "publisher" of the paper is presumed to be its "printer" in the absence of a showing to the contrary. (People v. Thomas, 101 Cal. 571.)

127. The affidavit and order for publication are no part of the judgment-roll, and where there is nothing in the judgment-roll

'not Incorporated in.

Want of authentication, motion to dismiss, supplying defect. See post, 180, 181.

of due service of the summons, it must be presumed upon appeal in support of the judgment, that the finding was based upon

a service made in pursuance of the statute. (La Fetra v. Gleason, 101 Cal. 246.)

128. It is only the finding of a referee upon the whole issue that must stand as the finding of the court, and form part of the judgment-roll; and a report of testimony made under a first order of reference which does not contain findings of fact does not constitute a part of the judgment roll, and cannot be considered upon an appeal taken upon the judgment roll alone. (Faulkner v. Hendy, 103 Cal. 15.)

This same principle was also laid down in Lee Sack Sam v. Gray, 104 Cal. 243.

129. An order setting aside a default and judgment, and restoring an answer to the files, forms no part of the judgment roll. (Von Schmidt v. Von Schmidt, 104 Cal. 547.) Instructions, when part of the judgment roll. See ante, 97.

3. Contradictions in

130. Where an instruction appears in an erroneous form in the bill of exceptions and in a different form in the judgment roll, which is not erroneous, the form of instruction as given in the judgment roll will be taken as correct upon appeal. (People v. Gibson, 106 Cal. 458.)

4.

Filing Written Transcript and Costs with Clerk.

131. Rule XII of the supreme court, which provides that the written transcript in civil cases may be filed with the clerk of the court, if, when presented for filing. it be accompanied with sufficient funds to pay the expenses of printing, and that the clerk. upon receipt thereof, shall cause the transcript to be printed, etc., should be strictly enforced and obeyed as written, and a deposit of the transcript with the clerk, without the funds necessary to pay for the print ing, is not in compliance with the rule. (Ward v. Healy, 110 Cal. 587.)

132. While no understanding or agreement between the clerk of the court and the appellant's attorney can dispense with a compliance with rule XII of the court, or give appellant any right in law to rely upon any such understanding, yet, where that rule has not been heretofore construed, and appellant's attorney, relying upon an agreement with the clerk, whereby the clerk, though without authority, in effect waived the payment of funds provided for by the rule, and consented to the printing of the transcript for him by appellant's attorney. which was printed without unnecessary delay, held, that the failure to file the printed transcript is so far excused by the circumstances that the appeal should not be dismissed for noncompliance with rule XII. (Ward v. Healy, 110 Cal. 587.)

VIII. Particular Questions, How Presented for Review.

1. Questions Relating to Pleadings. 133. Whether the complaint is sufficient to support the judgment, or whether the

court erred in overruling a demurrer to the complaint, are matters not involved upon the motion for a new trial, and can be considered only upon an appeal from the judgment. (Bode v. Lee, 102 Cal. 583.)

134. A motion by a defendant for a judgment upon the pleadings is in effect nothing more than a demurrer to the complaint upon the general ground that it does not state facts sufficient to constitute a cause of action, and the ruling thereon can only be reviewed upon an appeal from the judgment. (Evans v. Paige, 102 Cal. 132.)

Complaint, question of sufficiency not reviewed on appeal from order denying new trial. See post, 218.

Ruling on motion to strike out not reviewed on appeal from judgment. See post,

213.

2. Rulings on Evidence.

135. Where a certificate of acknowledgment is sufficient in form, an objection to it on the ground that an erasure appears thereon cannot be considered where the erasure does not appear in the record otherwise than by the objection. (Benson v. Shotwell, 103 Cal. 163.)

136. An objection to the introduction in evidence of an account book, where no part of the contents of the book, or of the evidence in relation to it is set out in the record, cannot be considered upon appeal, and it must be presumed that the ruling of the court in regard to it was correct. (Warren v. McGill, 103 Cal. 153.)

137. Where a claim against the estate of a deceased person is referred to the superior court for its decision, as provided in section 1507 of the Code of Civil Procedure, the testimony taken before the judge, sitting as a referee, although embodied in his report, is no part of the record, and cannot be reviewed upon appeal unless embodied in a bill of exceptions and filed; and it is only the finding of the referee which becomes part of the judgment-roll. (Lee Sack Sam v. Gray, 104 Cal. 243.)

138. An exception to the reading in evidence in a criminal case of pleadings in a civil action cannot be considered if the record does not contain the papers offered, nor the substance of them, nor even show what the action was about. (People v. Bidleman, 104 Cal. 608.)

Sufficiency of evidence, review of, appeal from judgment after sixty days. See ante, 41, 42.

3. Rulings on Motions for Nonsuit. 139. The ruling of the trial court upon a nonsuit presents a question of law, and, as such, must be both excepted to and specified as an error at law occurring at the trial and excepted to by the appellant; and the exception must appear in the stating or substantive part of the bill of exceptions or statement, and it is not sufficient that it be stated or referred to merely in the assignment of errors relied upon. (Craig v. Hesperia Land and Water Co., 107 Cal. 675.)