Landers

This cause is now before this court upon a petition of defendants, in which it is set forth that the judge of the superior court in which the cause was pending “refused to settle and certify” a bill of exceptions presented to him by petitioners; and they pray that this court “will settle and have certified the said bill of exceptions in accordance with the provisions of section 652 of the Code of Civil Procedure.” Plaintiff demurs to the petition upon various grounds, which present the'question whether or not it is sufficient.

Section 652 was not intended to apply, and does not apply, to the case where a trial judge has refused to settle a statement or bill of exceptions. The remedy for such a refusal, if wrongful, is mandamus to compel him to act. The law does not impose upon the appellate court the general duty of settling a bill of exceptions. Section 652 applies to a case where the trial judge, in settling a bill, •refuses to allow an exception which ought to be allowed. The language is: “If the judge in any case refuse to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the supreme court to prove the same”; that…