Swortfiguer v. White

Motion to dismiss the appeal. The respondent, Edward H. Hansen, has moved to dismiss the appeal herein upon the ground that the appellant has not filed a transcript within the time provided by the rules of this court, and upon the further ground that no properly authenticated transcript has been served upon him.

Within forty days after the appeal was taken a transcript was filed in this court containing an admission of service by the attorney for one of the respondents, and a stipulation as to its correctness signed by said attorney and the attorneys for the appellant. It appears from an affidavit of the managing clerk of the attorney for the moving party that a copy of this transcript was served upon the attorney for Hansen, and the real ground of the present motion is, that this transcript was not authenticated by the certificate of the county clerk or on behalf of said respondent, and that no transcript so authenticated has been served upon him. At the hearing of the motion the appellant presented another copy of the transcript, properly authenticated by the certificate of the county clerk, and asked leave to file the same. The objection of the respondent upon the ground that the transcript is not properly authenticated is therefore obviated. (Warren v.Hopkins, 110 Cal. 506.) The objection that the copy which was served upon the attorney for Hansen did not Contain a copy of this authentication is without merit.

Another ground presented in the notice of motion was, that the appellant had not filed his points and authorities within the time prescribed by the rule. A similar motion to the present was previously made, but proved abortive, by reason of not designating the day on which the motion would be heard, and, upon ascertaining that fact, the respondent gave notice of the present motion. In the interim the appellant filed his points and authorities, which, under rule V, is an answer to this part of the motion.

The clerk is directed to file the authenticated copy of the transcript presented by the appellant at the hearing of this motion, and the motion to dismiss the appeal is denied.

Garoutte, J., and Van Dyke, J., concurred.