Gutierrez v. Hebberd

Citations

• 106 Cal. 167
• 39 P. 529
• 1895 Cal. LEXIS 587

Syllabus

<p>Partition—Appeal from Final Decree—Bill of Exceptions—Service. 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.</p> <p>Id.—Award to Plaintiff of Lands Allotted to One Defendant— Service of Exceptions upon Plaintiff—Mandamus.—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.</p> <p>Id—Rights of Appellant—Duty of Judge to Facilitate Appeal.—An appellant has the right to have all the errors relied upon for the modification of a decree incorporated in a bill of exceptions, and it is the duty of the judge to facilitate, rather than to obstruct, efforts to have any errors in the decree corrected upon the appeal, and he ought not to deprive the appellant of an opportunity for correcting the decree by refusing to make the facts which would have that effect a part of the record.</p> <p>Id.—Questions for Appellate Court.—Whether parties not served with a bill of exceptions or 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 con