Muzzy v. D. H. McEwen Lumber Co.

Dec 18, 1908
S.F. No. 5055.
Versions:154 Cal. 685
98 P. 1062
1908 Cal. LEXIS 381
HENS HAW, J.

This is an appeal by plaintiff from the order of the court changing the place of trial upon motion of defendant and transferring the cause for trial to the county of defendant’s residence. The action was to recover damages for breach of contract. Respondent on the appeal moves its dismissal upon the ground that there is no bill of exceptions nor' other authentication of the papers on appeal as required by rule XXIX of this court, (144 Cal. lii, [64 Pac. xii]). The transcript contains the complaint, the notice of motion to change the place of trial, the supporting affidavit, and demand for change of place of trial filed with defendant’s demurrer to the complaint. To these papers is appended the order of court granting the motion. There is no attestation nor authentication to any of these papers other than the certificate of the clerk to the effect that the transcript contains full and true copies of original papers on file in his office “all of which were used on the hearing of said motion.” That this is not a proper method of authentication may not be doubted. The proper method, of course, is by bill of exceptions certified to by the judge. Moreover, waiving the question of the power of the clerk, the authentication is incomplete, for while it states that these papers were used upon the hearing of the motion, it is nowhere made to appear that they were all of the papers, and thus this certificate of the clerk is subject to the additional objection considered fatal in Shain v. Eiker *687 enkotter, 88 Cal. 13, [25 Pac. 966]. There the papers embodied in the appeal bore the indorsement of the judge that they were read upon the motion. This court said that there was no bill of exceptions or other proper certification to show “that all of the papers used on the hearing in the court below are before us in this transcript.” To this, however, respondent makes answer that his case comes within the exception noted in Miller v Lux, 100 Cal. 609, [25 Pac. 345, 639], But the case does not come within the exception noted in Miller v. Lux. It is there specifically pointed out that section 951 of the Code of Civil Procedure makes it thé duty of a person appealing from an order to furnish this court with a copy of the order appealed from, and copies “of papers used on the hearing in the court below,” which means, as construed in 88 Cal., all of the papers used in the court below. It is said: “This rule was only intended to apply to those appeals in which the order is sought to be reversed, because of matters alleged to be shown by affidavits or evidence used or taken upon the hearing of the court below.” Such is precisely the case here presented. The motion was based upon at least one affidavit and we are not advised by any authentication whether other affidavits were or were not before the trial court. The exceptional case illustrated by Miller v. Lux, 100 Cal. 609, [35 Pac. 345, 639], was an appeal from an order settling the accounts of the executors and the point of attack was that the court had failed to charge the executors with interest upon money which it found had been improperly paid by them to the widow as a family allowance. It is manifest that this order, in the nature of a final judgment, was reviewable upon the face of the record itself, and for this reason constituted an exception to the general rule. Such, as has been said, is not the situation presented upon this appeal, and the motion to dismiss is therefore granted.

Sloss, J., Shaw, J., Angellotti, J., and Lorigan, J., concurred.