Melde v. Reynolds

Citations

• 120 Cal. 234
• 52 P. 491
• 1898 Cal. LEXIS 741

Syllabus

<p>Appeal—Time fob Appeal fbom Judgment—Amendment of Code not Retroactive.—The amendment of section 939 of the Code of Civil Procedure, made in 1897, limiting the time for appeal from a judgment to the period of six months, was not retroactive, and does not apply to a judgment entered before it took effect; but the times within which an appeal can be taken is governed by the statute in force at the time of the entry of the judgment.</p> <p>Id.—Appeal fbom New Trial Order—Authentication of Affidavits—Bill of Exceptions.—Upon appeal from an order denying a new trial, affidavits used upon the hearing of the motion must be incorporated in a bill of exceptions under rule XXIX of this court, else they cannot be considered on the appeal; and a certificate of the judge authenticating certain affidavits as having been used upon the hearing of the motion, without showing that these were all the papers used at the hearing, is an insufficient authentication. The clerk is not authorized by law to certify that any affidavits were used upon the hearing of the motion for a new trial, and affidavits authenticated by him only are not properly authenticated, and cannot be considered upon the appeal.</p> <p>Id.—NONAPPEADABDE ObDER STRIKING OUT AMENDED AFFIDAVITS—DISMISSAL— Review of New Trial Order.—An order striking from the files amended affidavits filed in support of a motion for a new trial, after it had been made, and while it was pending, is not appealable, and an appeal therefrom must be dismissed; but where such affidavits are incorporated in a bill of exceptions, showing the action of the court in refusing to consider the affidavits upon the hearing of the motion for a new trial, such bill of exceptions constitutes part of the record on appeal from the order denying the new trial, and the action of the court in striking out the affidavits may be reviewed upon such appeal.</p> <p>Id.—Merits of Ruling not Considered upon Motion to Dismiss.—The bill of exceptions cannot be looked