Malcolmson

This is a petition for a writ of mandate to compel the judge of the superior court of Fresno Comity to settle a statement on motion for a new trial. The case has been submitted upon a general demurrer to the petition, the substance of which is: That in an action in which Paulina Fincher was plaintiff, and petitioner a defendant, a judgment was entered in said court in favor of the plaintiff; that thereafter, in due time, the petitioner gave notice of his intention to move for a new trial, upon the grounds, among others, that the evidence was insufficient to justify the decision, and that it was against law, and stating in said notice that the motion would be based upon the minutes of the court; that afterwards the motion for a new trial was made and overruled, and thereupon a correct statement of the evidence and proceedings at the trial was pre *263 pared and served in due time; that the respondent struck out of said statement everything relating to the trial, including the evidence, and refused to settle or act upon the same, upon the ground that there were no minutes thereof, — that is to say, there were no shorthand notes of the evidence, no reporter having been present at the…