Knox v. Schrag

122 P. 969 | Cal. Ct. App. | 1912

This is an appeal from an order granting the motion of defendants for a change of the place of trial from Alameda county to Calaveras county.

Respondents object to the hearing of the appeal upon its merits, and ask this court to dismiss the appeal because, as it is claimed, no properly authenticated record has been filed in this court.

The transcript filed in this court is entitled "Bill of Exceptions," and consists of various documents, including, among others, various affidavits, notice of motion for change of venue, demand for such change, amended complaint, demurrer to amended complaint, order of court granting motion, and notice of appeal. No bill of exceptions was ever settled by the judge as required by rule XXIX, [144 Cal. lii, 119 Pac. xiv], and no attempt was made to follow the procedure authorized by sections 953a, 953b and 953c, Code of Civil Procedure.

The only authentication of the record is that contained in a certificate of the clerk printed in the transcript, to the effect that the transcript "contains full and true copies of the bill of exceptions and notice of appeal from order, and all papers used in motion for change of venue, now on file in said court and cause."

A record so authenticated is wholly insufficient as a basis for this court to review the order appealed from. (Harrison v. Cousins, 16 Cal.App. 515, [117 P. 564];Hibernia Sav. Loan Soc. v. Doran, 161 Cal. 118, [118 P. 526]; Hershey v. Bristol, 162 Cal. 110, [121 P. 371].)

In Harrison v. Cousins, 16 Cal.App. 515, [117 P. 564], this court granted a motion to dismiss the appeal, but inHibernia Sav. Loan Soc. v. Doran, 161 Cal. 118, [118 P. 526], it is pointed out by the supreme court that the more appropriate order is an affirmance of the order appealed from.

The order appealed from is affirmed.

Lennon, P. J., and Kerrigan, J., concurred.