
    CURRAN v. KENNEDY et al.
    No. 13,703;
    May 3, 1890.
    24 Pac. 276.
    Bill of Exceptions—Settlement.—Under Code of Civil Procedure, section 652, providing that, if a judge refuses 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, such an application will be granted where the petitioner alleges that a bill settled by the judge is not in accordance with the facts, pointing out the particulars in which it is incorrect, and the judge alleges that the bill is true.
    Petition to prove bill of exceptions.
    Code of Civil Procedure, section 652, provides that, if a judge refuses 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.
    Charles F. Hanlon for petitioner; Gartlan & Curran for respondents.
   PER CURIAM.

This is an application under section 652, Code of Civil Procedure, for leave to prove and to settle bill of exceptions to be used on appeal. The petition concedes that the judge has settled and certified a bill of exceptions, but alleges that the same is not a true bill, in accordance with the facts, and annexes to his petition a copy of the bill as settled, and also a copy of the proposed bill. The respondent alleges that the bill as settled and allowed by him is true and correct. ' The case presents a direct issue between the petitioner and respondents as to the accuracy of the bill as settled; the petitioner pointing out the particulars in which he claims that it is incorrect. It seems to be a case in which the petitioner should be allowed to prove the truth of the issue thus presented. It is therefore ordered that this cause be, and the same is hereby, referred to Hon. R. Y. Hayne, a commissioner of this court, to take the proofs, and report the same, with his findings thereon, to this court.  