Richardson v. City of Eureka

92 Cal. 64 | Cal. | 1891

Garoutte, J.

Respondent moves to dismiss the appeal herein from the judgment and order denying a new trial, upon the ground that appellant has not furnished this court with a transcript containing a copy of the judgment roll in said cause, as required by sections 661 and 952 of the Code of Civil Procedure.

Respondent further insists that the appeal from the order denying the motion for a new trial should be dismissed upon the grounds that,—1. The transcript on ap-peal shows that appellant did not file with the clerk or serve any notice of his intention to move for a new trial in said cause; 2. That the transcript shows that appellant did not move for a new trial in said cause; 3. That the transcript shows that appellant did not prepare or serve upon respondent .any draught of a statement of the case, etc.

Since the motion to dismiss this appeal was noticed for hearing, appellant has supplied the judgment roll with a certified copy of the verdict, and there now appears to be nothing wanting necessary to a complete determination of the appeal. In Paige v. Roeding, 89 Cal. 69, it was held that an appeal would not be dismissed by reason of a defective judgment roll, when all the portions of the roll are before this court which are requisite to a full determination of the cause.

In Pico v. Cohn, 78 Cal. 384, it was held that the notice of intention to move for a new trial was no part of the record on appeal. In that case the court said: “When the case comes to us, we must look to the statement or bill of exceptions, and the specifications in which the decision of the court below is not sustained by the evidence, and the specifications of errors of law, as our guide in reviewing the case, and to these alone.”

Any defects alleged to exist in the statement of the case will be considered when the cause comes before us, upon its merits.

Let the motion to dismiss the appeal be denied.

Harrison, J., and Paterson, J., concurred.