Camenzind v. Kampfen — 130 Cal. 596

Majority

p. 596

[S. F. No. 2545.

In Bank.

December 3, 1900.]

CAROLINE CAMENZIND, Appellant, v. JOHN KAMPFEN, Respondent.

Headnote

Appeal—Stipulation for Dismissal—Absence of Transcript—Clerk’s Certificate.—In the absence of the transcript upon appeal disclosing who are the attorneys of record, an appeal will not be dismissed upon a mere stipulation of attorneys, without a certificate of the clerk, under seal of the court, setting forth the matters required by rule YI of this court, and also the date of the entry of the order or judgment appealed from.

MOTION to dismiss an appeal from the judgment of the Superior Court of Sacramento County. Matt. F. Johnson, Judge.

The facts are stated in the opinion.

Holl & Dunn, for Appellant.

Devlin & Devlin, for Respondent.

A motion has been made to dismiss the appeal from the judgment in the above-entitled action, based upon a stipulation signed by certain attorneys of this court, representing themselves as attorneys respectively for the appellant and respondent. No transcript on appeal has been filed, nor has the moving party presented any certificate from the clerk of the superior court from which it can be determined whether the appeal has been taken, or who are the attorneys therein for the respective parties.

Subdivision 2 of rule VI of this court provides that, on a motion to dismiss an appeal on any other ground than the failure to file the transcript within the prescribed time, the moving papers shall consist of. the certificate of the clerk below setting forth certain matters mentioned in the preceding subdivision of the rule, among which are “the fact and date of the filing of the notice of appeal, together with the fact a ad date of service thereof on the adverse party, and the character of the evidence by which said service appears.” While we have no reason to question the authority of the attorneys

p. 597

who have signed the above-named stipulation, we are unwilling to establish a precedent by which an' order for the dismissal of an appeal may he granted upon the application of persons not authorized to represent the parties to the appeal. In analogy to the practice embodied in the above rule, it must he held that on a motion to dismiss an appeal upon a stipulation of the parties thereto, when no transcript of the record has been filed herein, there must be presented, in addition to the stipulation, a certificate of the clerk below, under seal of the court, setting forth the matters aforesaid, and also the date of the entry of the order or judgment appealed from.

The motion to dismiss the appeal is denied without prejudice to its renewal upon the presentation of the certificate above indicated.