
    [No. 13292.
    In Bank.
    August 2, 1890.]
    J. B. CROW, Administrator, etc., Petitioner, v. WILLIAM O. MINOR, Judge of the Superior Court of Stanislaus County, Respondent.
    Petition to Prove Exceptions — Failure of Proof.—A petition for leave to prove an exception will be denied, where it appears, from the evidence upon an issue of fact as to the alleged matter of exception taken before a referee appointed by the supreme court, that the allegations of the petition are not established by the preponderance of evidence.
    Petition to the Supreme Court to settle exceptions disallowed in settling a statement on motion for new trial, in an action appealed from the Superior Court of .Stanislaus County.
    
      The facts are stated in the opinion of the court.
    
      Stonesifer & Minor, for Petitioner.
    
      Hatton & Fulherth, for Respondent.
   Works, J.

This is an application by the petitioner for leave to prove an exception under section 652 of the Code of Civil Procedure. An order was made requiring the respondent to appear and show cause why -the exception should not be allowed. The petition alleged, that in the trial of a certain cause had before the respondent, in which the petitioner was a defendant, the petitioner requested the court to give a certain instruction, which was refused, to which the petitioner excepted, and that in the settlement of the statement the respondent refused to allow such exception. The respondent appeared, and by way of answer denied that such an instruction was asked or refused, and alleged that another instruction, different in form and substance, was the one asked and refused. Therefore the whole controversy between the parties was as to which of these instructions should be the basis of the petitioner’s exception.

This question of fact was referred to Hon. Joseph H. Budd, judge of the superior court of San Joaquin County, to take the evidence and report the same to this court, which has been done. We have examined this evidence, and find that it fails to establish the allegations of the petition, the preponderance of the evidence being in favor of the respondent.

Petition denied.

Paterson, J., Thornton, J., Sharpstein, J., and McFarland, J., concurred.  