98 P. 1062 | Cal. | 1908
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. Eikerenkotter, *687
Sloss, J., Shaw, J., Angellotti, J., and Lorigan, J., concurred. *688