39 P. 553 | Idaho | 1895
The district court is required by law to keep a complete record of all matters and proceedings had and done in said court. This record is kept by the clerk under the direction of the judge. It is also necessary that a record of all matters done at chambers should be kept. It is the practice of the district court judges to direct the clerk to keep this record also. Necessarily, then, the clerk has as good a knowledge of the proceedings at chambers as he has of court proceedings. It would be the duty of the clerk, under the direction of the judge, to in some manner identify the papers, or in some way mark the papers used on the hearing in the court below, in order that he may be able to correctly state in his certificate what papers were so used. Section 4819 of the Revised Statutes requires the appellant to furnish the supreme court with a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing in the court below. Who is to determine what papers were so used? Section 4821 of the Revised Statutes, in our opinion, distinctly states who shall do so. This section states: “The copies provided for in the last three sections [this includes 4819] must be certified to be correct by the clerk or the attorneys.” The appellant, who is required by section 4819 to furnish this court with copies of the papers used on the hearing below, does everything he is required to do in the court by his attorney, and therefore section 4821 says that the attorneys may certify that the papers so furnished are correct. What does the word “correct” mean, as used in this connection? Evidently something more than that the papers are correct copies of others .on file. This section states that the papers provided for in section 4819 must be certified to be correct by the clerk or by the at
As to the decisions of the California supreme court, which we are requested to follow, we must respectfully say the path is too devious. In Pieper v. Land Co., 56 Cal. 173, that court holds that at that time a bill1 of exceptions was unnecessary, and the certificate of the judge was sufficient. In Nash v. Harris, 57 Cal. 242, there was no identification whatever, and the court there say the papers must be made a part of the case by bill of exceptions, or be authenticated by the judge; but our statute does away with the bill of exceptions in this instance, as above stated. In Baker v. Snyder, 58 Cal. 617, the court says: “The code provides no mode by which the papers used on the hearing shall be identified, and that, when the clerk cer