
    H. D. Shepard and another v. E. B. Peyton, Judge, etc.
    January Term, 1874.
    Bills of Exceptions: Decision of Trial Judge: Conclusiveness of. The decision of the trial judge that a bill of exceptions tendered to him fox-signature is untrue, is conclusive and final, and the supreme court will not, upon mandamus, hear testimony as to its truthfulness, or compel him to sign it.
    
    Original proceedings in manulamus.
    
    At the March term, 1873, of the Lyon district court, an action, wherein H. D. Shepard and Jesse J. Playford were plaintiffs and T. D. Bragunier and George Bragunier were defendants, was brought on for trial, Hon. E. B. Peyton, judge of the Fifth judicial district presiding. During the trial such proceedings arose that, on the defendants’ application therefor, the court discharged the jury, and continued the cause until the next term, at the costs of the plaintiffs. The plaintiffs, Shepard & Playford, excepted, and prepared a bill of exceptions, and presented said bill to the district judge for signature. The judge refused to sign it as presented, and this proceeding is brought to compel him to do so. An alternative writ of mandamus was issued July 10, returnable August 12, 1873.
    
      *GiUett dc Sanders, for plaintiffs.
    
      R. M. Ruggles, for defendant.
    
      
       Certificate of trial judge cannot be altered or reformed in the supreme court. Missouri, K. & T. Ry. Co. v. Fort Scott, 15 Kan. 435. The decision of the trial judge that a case made, as prepared for his signature by one of the parties to the action, is untrue, is conclusive and final. Salnia, B. S. & T. Ass’n v. Beebe, 24 Kan. 363. The allowance of a bill of exceptions is a judicial act. Whitzell v. Forgler, 30 Kan. 525, S. C. 1 Pac. Rep. 823.
    
   Brewer, J.

This is an original proceeding in this court to compel the signing by the defendant, the judge of the Fifth district, of a bill of exceptions. The return of the judge alleges that the bill of exceptions tendered for his signature was not true, that he suggested' the necessary corrections, and offered to make them, and sign the bill. And the question, as now presented, is whether this court will hear testimony as to the truth or falsity of the bill of exceptions tendered, or take the return of the judge as conclusive upon the question. Can a litigant in a district court tender a bill of exceptions to the judge, and, when he refuses to sign it because he finds it to be untrue, sue out a writ of mandamus here, and have this court decide as to its truth? Can this court settle bills of exceptions in cases tried in the lower courts ? We think not. It is the duty of the trial judge to settle and sign bills of exceptions, — a duty we can compel him to perform, but not one that we can perform for him. We can command him to act, but cannot say how he shall act. His decision as to the truthfulness of a bill is conclusive and final. The judge who heard the testimony, and knows upon what his rulings were based, will be far more apt to arrive at the truth in a bill of exceptions than a tribunal whose only knowledge is derived from the uncertain, and ofttimes conflicting, recollections of witnesses. As is well said by counsel for defendant in his brief: “The idea of determining what rulings were made in any given ease tried before a judge as a court, or what evidence was introduced on such trial before such court, by forming issues thereon to be tried by a jury, would, to say the least, be as unseemly in practice as it would be unsatisfactory in re-suits. ‘ It would result in making juries who *were not present at the trials settle bills of exceptions, frequently upon prejudiced and conflicting testimony, against the judge who presided at the trials, elected by the people for that purpose on account of his supposed ability and. integrity, and on whom for that very reason, the law devolves the duty of settling bills of exceptions.’ State v. Noggle, 13 Wis. 380.” See, also, the following authorities: State v. Sheldon, 2 Kan. *322; State v. Todd, 4 Ohio, 351; Creager v. Meeker, 22 Ohio St. 207; Ex parte Bradstreet v. Thomas, 4 Pet. 102; People v. Pearson, 3 Ill. 205; People v. Jameson, 40 Ill. 93; People v. Wayne Circ. Ct. Judge, 23 Mich. 536; People v. Justices Superior Ct., 20 Wend. 663; Jamison v. Reid, 2 G. Greene, 394.

Judgment will be entered in favor of the defendant for costs.

(All the justices concurring.)  