Bodley v. Ferguson

| Cal. | Jul 1, 1864

By the Court, Sanderson, C. J.

This is an appeal from an order granting a new trial. The plaintiff takes the appeal. The case is brought here upon what purports to be a bill of exceptions made up ex parte and inserted in the record without the knowledge or' consent of the defendant, the statement upon which the motion for a new trial was made in the Court below being omitted. The resjoondent moves to dismiss the appeal upon the ground that the appellant has not furnished this Court with the necessary papers.

The three hundred and forty-sixth section of the Practice Act provides that “ On appeal * * * from an order the appellant shall furnish the Court with a copy of the notice of appeal, the * * * order appealed from, and a copy of the papers used in the hearing of the Court below; such copies to be certified by the Clerk to be correct. * * * If the appellant fail to furnish the requisite papers, the appeal may be dismissed.”

Under this provision it is incumbent upon the appellant to furnish this Court with the statement or affidavits,' or both, as the case may be, which were used in the Court below upon the hearing of the motion for a new trial, and the substitution of a different record is wholly unauthorized. The appellant having failed to comply with the law in this respect, the appeal must be dismissed.

Ordered accordingly.