Williard v. Dillard

Citations

• 86 Cal. 154
• 24 P. 940
• 1890 Cal. LEXIS 992

Syllabus

<p>Mandamus—Settlement of Bill of Exceptions—Petition—Averments as to Judge—Judicial Notice—Answer Supplying Defects. — A petition for a writ of mandate to the judge of a superior court to compel the settlement of a hill of exceptions, though it would be better specifically to state that the respondent is the judge who tried the case, or who heard and determined the motion for a new trial, is not demurrable for not stating that the respondent is the judge of the superior court specified, as the supreme court will take judicial notice as to who is judge of a particular superior court, and that he is the only judge of that court; and if the petition shows that the trial was had, judgment rendered, and motion for new trial made and denied in the court of which the respondent is judge, and the answer of the respondent shows that he was in fact the judge who presided at the trial, the omission of the petition to make a specific averment to that effect is sufficiently supplied by the answer.</p> <p>Id.—Extension of Time to Prepare Exceptions in Criminal Case—• Notice to District Attorney—Object of Notice. — Under section 1171 of the Penal Code, providing that a party desiring to have a hill of exceptions settled must, upon not less than two days’ notice to the district attorney and within ten days after the rendition of the judgment, or such further time as may be allowed by the court or judge, present the same to the- judge for settlement, where the defendant was given an extension of time beyond that allowed by law, within which to prepare and present a bill of exceptions, but the extension was not in excess of the time allowed by law for the court to give, and within such time and upon not less than two days’ notice to the district attorney, defendant applied to the court to settle and certify the bill of exceptions, the bill should be settled and allowed; and it is error to refuse to settle and allow it upon the ground that when the extension of time was given, the ti