Bennett v. Bennett

42 Cal. 629 | Cal. | 1872

By the Court, Rhodes, J.:

Motion to dismiss the appeal, under Rule Four, upon a certificate of the Cleric.

The certificate is defective because it does not state whether a statement on appeal was filed.

It is also defective because it does not state the amount or character of the judgment. The copy of the undertaking on appeal specifies the amount, and in some respects the character of the judgment; but the recitals in the undertaking—which may or may not be true—will not be accepted as a substitute for statements which are required to be contained in the certificate.

If the copies of the notice of appeal and the undertaking on appeal could be taken in lieu of the Clerk’s certificate, they are still defective, as the undertaking does not recite the same judgment which is mentioned in the notice of appeal. The undertaking is, therefore, not in due form.

It is contemplated by Rule Four that the matters therein mentioned should be stated in the certificate of the Clerk; and not that they should be presented by means of documents on file in the Court below.

Motion denied.