Tarvin v. Davey

BARNARD, P. J.

This is a motion for diminution of the record with a counter-motion to dismiss the appeal.

The judgment appealed from was entered on July 10, 1941. A notice of appeal was filed on December 22, 1941. No reporter’s transcript has ever been filed. A clerk’s transcript was filed on October 16, 1941, containing some evidentiary matter which is in no way authenticated. This matter may not be considered on this appeal.

There is nothing in the record before us to show that any notice was ever given for the preparation of a transcript under section 953a, Code of Civil Procedure. However, the notice of motion for diminution of the record has attached to it what purports to be a copy of such a notice to the clerk, stating that the only portion of the reporter’s notes which was desired was a certain stipulation made during the trial. In the motion for diminution now made it is asked to have this stipulation added to and made a part of the “clerk’s” transcript. It is apparent that this matter has no place in the clerk’s transcript, there is no reporter’s transcript here, and there is no record which might be augmented through the motion here made.

While there is no record before us with respect to the evidence considered by the trial court, the clerk’s transcript is sufficient for the presentation of any questions which may be raised upon the judgment roll alone. For this reason the respondent’s counter-motion to dismiss the appeal must be denied.

Both motions are denied.

Marks, J., and Griffin, J., concurred.