Ramsbottom v. Fitzgerald , 128 Cal. 75 ( 1900 )

The defendants have appealed from an order denying their motion to set aside and vacate the judgment and order denying a new trial and to perpetually stay execution on said judgment. The respondent urges that the points made in support of their appeal cannot be considered, for the reason that they have failed to bring to this court a record of the matters upon which the action of the superior court was based.

Section 951 of the Code of Civil Procedure provides: "On appeal from a judgment rendered on an appeal, or from an order, except an order granting or refusing a new trial, the appellant must furnish the 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."

Rule XXIX of this court is as follows: "In all cases of appeal to this court, from the orders of the superior courts, the papers and evidence used or taken on the hearing of the motion must be authenticated by incorporating the same in a bill of exceptions, except where another mode of authentication is provided by law."

This rule was adopted subsequent to the decision in Somers v.Somers, 81 Cal. 608, and, it may be assumed, was made in consequence of what was said in the opinion in that case. There is no bill of exceptions in the present case, and the only authentication of the "papers used on the hearing in the court below" is the certificate of the judge by whom the order was made, that certain papers annexed thereto were used at the hearing of the motion, and that "the attorney who appeared in behalf of said motion used or presented no papers on the hearing thereof save those in this certificate hereinbefore mentioned, and no oral testimony was taken or used." The certificate continues: "I further certify that said superior court, myself acting as judge thereof, did of its own motion, both in hearing and deciding defendants' said motion, take notice of and use its own records in this said cause, particularly of the judgment-roll therein and of the remittitur issued to said superior court by the supreme court."

This certificate of the judge is not the equivalent of a bill of exceptions, and, in the absence of such bill, the appellant is not entitled to be heard upon this appeal. (Melde v. Reynolds, 120 Cal. 234, and cases therein cited.) The documents referred to therein as having been used by the court of its own motion are not set forth in the certificate, and, as we have not before us a properly authenticated record of the papers upon which the order was made, the validity and regularity of the order is not reviewable on appeal. (Larkin v. Larkin, 76 Cal. 323.) The certificate of the judge was made ex parte; whereas, if the appellant had caused a bill of exceptions to be settled as required by the above rule, the respondent would have had an opportunity to have inserted therein all the matters considered by the court in making the order.

The appeal is dismissed.