Pio v. Aigeltinger

Citations

• 97 Cal. 81
• 31 P. 895
• 1892 Cal. LEXIS 762

Syllabus

<p>Appeal—Dismissal — Failure to File Transcript — Certificate okClerk. — A certificate of the clerk of the superior court, presented,, under rule VI. of the supreme court, on a motion in the supreme court to dismiss the appeal for failure to file a transcript within the prescribed time, which gives the date of the entry of judgment, the amount and character of the judgment, and immediately thereafter states “ that after the rendition of said judgment the said defendant filed a notice of appeal in said action,” etc., is sufficient, where it appears that there was ' but one appeal taken, and it is entirely superfluous to state that the appeal was taken to the supreme court.</p> <p>Id.—Motion to Dismiss — Time of Filing Certificate of Clerk — Amendment of Certificate after Transcript Filed — Waiver. — The right of a respondent to have the appeal dismissed does not depend upon the filing of a certificate of the clerk of the trial court before the transcript is filed or the motion to dismiss is heard, but upon the fact that no transcript was on file when the notice of the motion was given. The certificate is merely the evidence of facts which are required to be presented on the hearing of the motion, and the presentment, after the hearing of the motion and after the filing of the transcript, of an additional certificate amending the former one, is not an abandonment by the respondent of his right to have the motion determined on the original certificate. In such a case the court may consider the amended certificate, if it is material.</p>