63 Cal. 417 | Cal. | 1883
The appeal in hand is from the final judgment in this case, and from an order denying a motion for a new trial.
The notice of intention to move for a new trial designated that the motion Avould be made “on a statement of the case, and on the papers and records in the cause.”
In the transcript there is a paper marked, “ defendant’s proposed statement on motion for a new trial and on appeal,” which appears to have been filed April 10, 1880; but it Avas not, at any time, signed by the judge of the court, nor certified by him to the effect that it had been settled and allowed as was required by section 659 of the Code of Civil Procedure.
When notice is given of a motion for a new trial, to be made on a statement of the case, it is the duty of the moving party to propose such a statement, and have it settled, signed, and certified by the judge. The statement must be authenticated in that Avay before it can be filed with the clerk of the court. (§ 659, supra.) After it has been signed and certified and filed, the motion upon it may then be brought to a hearing by either party; and as the statement used on the hearing, it constitutes part of the record of the case on appeal from the order granting or denying the motion. But the signature and certificate of the judge are indispensable. (Schreiber v. Whitney, 60 Cal. 431; Keller v. Lewis, 56 Cal. 466.) Without them there is no statutory statement on which the motion may be heard.
In some instances we have sent down the record of a cause to have inserted in it some matter omitted from a bill of exceptions or statement in the transcript; but there is no case in which the practice has been adopted of returning the record of a case for the purpose of supplying a bill of exceptions or statement which did not legally exist.
The motion made to return the record in this case for that purpose must therefore be denied; and as there is no error in the judgment roll, the judgment and order appealed from are affirmed.
McKikstry, J., and Boss, J., concurred.
The counsel for the appellants subsequently filed a petition asking that the judgment of the department be vacated, and that the cause be heard and decided by the court in Bank. On the thirty-first day after the judgment was pronounced—the day previous being Sunday—an order was made granting the petition. The counsel for the respondents thereupon moved the court in Bank to vacate the order, and for a remittitur, on
On the 15th day of December, 1882, Department One of this couz’t affirmed the jzzdgment appealed from herein, and on the 15th day of January, 1883, the court made an order that the case be heard in Bank. The Constitution (§ 2, art. vi.) pzwides that " where a cause has been allotted to one of the departments (as this cause was), and a judgment pronounced thereon, the order (that the same be heard and decided izz Bank) must be made within thirty days after such judgment, .... and if so made it shall have the effect to vacate and set aside the judgment..... If the order be not made withizz the time above limited the judgment shall be final.” The respondent zzow moves to have the order of January 15, 1883, vacated, on the ground that it was not made within thirty days after the judgment of the department had been pronounced. As to the fact that the order was not made within the time prescribed, there can be no controversy. But the thirtieth day after the judgment of the department was prozzounced fell on Suzzday, and the order was made ozz the following Monday. Thei'e is a general provision in the Code that the time in which azzy act provided by law is to be done is coznputed by excluding the last day if it be a holiday. (Code Civ. Pz'oc. § 12.) And as Sunday is a holiday, it is contended by appellazzts’ counsel that the last day upon which an order that this case should be heard in Bazzlc could be made being Sunday, it must be excluded; and if excluded, the order made on the following day was made within thirty days after the judgment had been prozzounced in . the department. Whether, in the absence of other provisions of the Code, and the Constitution relating to this sazne subject, that would be so, it is not now necessary to decide, becazzse the Constitution declares that this court " shall always be opezz for the transaction of business,” and the legislature when prescribing ozz what days courts may be held and jzzdicial business transacted, provides "that the Supreme Court shall always be opezz for the trazzsaction of business,” and that provision is inserted among the exceptions to the general rule, that no court
Motion granted.
Petition for a rehearing denied.