Simmons Hardware Co. v. Alturas Commercial Co. , 4 Idaho 386 ( 1895 )

MORGAN, C. J.

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 attorney. Clearly, they must certify that they are the papers required by section 4819, and these were the papers used on hearing in. the court below. Counsel contends that this certificate mentioned in section 4821 is simply that the papers in the transcript are correct copies of those on file in the court below, but this will not do, as the clerk is the sole custodian of those papers, and the only person authorized to make copies from them, and certify to the correctness of such copies. The attorney can neither make copies of such papers, as they are not in his custody, nor has he any right to copy them for this court, nor can he make a certificate that a copy of a paper on file or in the custody of the clerk of the district court is a correct copy of such paper, and ask this court to receive such certificate as any evidence of the facts therein stated; but he may •certify that certain papers were the ones used on the hearing below, because this would be within his knowledge, nor would he need the actual custody of the papers so to do. If it be claimed that the word “attorneys” means the attorneys for both parties must certify, then this would be an additional reason why the construction here given is correct, as it would not certainly require the attorneys for both parties to certify to the correctness of a copy which the clerk could do alone. Our law (Eev. Stats., sec. 4427) specifically states that such papers need not be embodied in the bill of exceptions, but the same, appearing in the record or files, may be reviewed upon appeal as though settled in the bill of exceptions.

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 certifies that certain papers were the ones used on the hearing, it is not conclusive, but such certificate may be contradicted.” In the latter statement we agree with that court. In Walsh v. Hutchings, 60 Cal. 228, the court says: “There is no bill of exceptions, and the court does not identify these papers as being used on the motion.” The plain inference is that, if either mode had been used, the authentication would have been sufficient, but our statute makes a bill of exceptions unnecessary, and the California supreme court afterward, in Herrlick v. McDonald, 80 Cal. 473, 22 Pac. 299, says the judge has no authority thus to identify the papers. Referring again to Walsh v. Hutchings, supra, the court, further on, says the clerk has no power to determine what papers or evidence the court acted upon, but offers no explanation of section 953 of the California Code of Civil Procedure, which is identical with our section 4831. Here is an end of the whole matter. The California supreme court decides the clerk has no power to certify, and the judge of the court cannot do it, but it must be done by bill of exceptions, which is only another form of the certificate' of the judge; and our statute expressly says the bill of exceptions is not necessary. We think a fair construction of-section 4831 would authorize the clerk of the district court or attorneys to certify, as in this case, that the transcript contains full, true and correct copies of all the papers used on the hearing of the motion of defendant in the court below, or as the case may be. This certificate, if incorrect, would be subject to correction by either party upon a suggestion of diminution of the record. Motion denied.

Sullivan and Huston, JJ., concur.