169 P. 356 | Cal. | 1917
The plaintiff recovered judgment against the defendant on two promissory notes made by defendant to plaintiff's assignor. The defendant appeals from the judgment. *601
The record on appeal was prepared under the alternative method. (Code Civ. Proc., secs. 953a, 953b, and 953c.) It is certified by the clerk alone.
The appellant's first contention is that the action should have been dismissed, on its motion, for want of diligence in prosecution. The transcript contains copies of certain notices of motion, affidavits, and orders bearing on this matter. But it is settled by our decisions that, where a record is made up under the alternative method, all that may be authenticated by the clerk is the judgment-roll, together with the notice of appeal. In the absence of a certificate of the trial judge, other papers are not a part of the record on appeal, and they cannot be considered. (Totten v. Barlow,
From recitals in the findings and the judgment, it appears that the trial took place something more than five years after the filing of defendant's answer. The appellant claims that this lapse of time made it mandatory on the court to dismiss the action on its own motion. The last clause of section
Apart from this, it is not suggested that any error appears on the face of the judgment-roll.
The judgment is affirmed.
Shaw, J., and Lawlor, J., concurred. *602
