10 Cal. 370 | Cal. | 1858
Terry, C. J., and Baldwin, J., concurring.
The appeal in this case was dismissed at the present term, for failure of the appellant to file a transcript of the record. The
In answer to the motion, the respondent shows that the order appealed from was made upon affidavits of the respective parties, and insists that no statement is required.
The Practice Act, after designating the manner in which statements shall be prepared, expressly excepts appeals from an order made upon affidavits filed, and provides that the affidavits shall be annexed to the order, in place of the statement. (§§ 339,343.) All that is requisite, then, in such cases, is that the certificate of the clerk should specify the affidavits used, and to enable him to do so he should, at the time, mark them as filed on the motion.
Motion denied.