Wilson v. Dougherty — 45 Cal. 34

Majority

p. 34

[No. 3,446.]

WILSON v. DOUGHERTY et al.

Headnote

Settlement oe Statement.—A statement, whether on appeal or on motion for a new trial, cannot be settled by a certificate of the Judge, written in the printed transcript, on appeal to the Supreme Court.

Statement on Appeal ebom Order.—On an appeal from an order striking out a notice of motion for a new trial, a statement in support of the appeal must he presented.

Order oe Court Presumed to be Correct.—Every presumption consistent with the record is to be indulged in favor of the correctness of an order of Court, and if there is no statement showing the contrary, it will he presumed that an order striking out a notice of motion for a new trial was made by consent.

Order Denying New Trial.—The Court will not review an order denying a motion for a new trial if the statement is neither agreed to nor certified.

Appeal from the District Court of the Third Judicial District, Santa Clara County.

The action was against the defendants as debtors of a judgment debtor of plaintiff in a former action. Judgment was rendered for the defendants, and plaintiff moved for a new trial. The notice of motion for new trial was struck out by the Court and the new trial denied. The transcript contains a statement on appeal, and also a statement on motion for a new trial. Neither statement was agreed to, and the only indication of a settlement of either is contained in a certificate, written by the District Judge upon the

p. 35

inside of the cover of the transcript, as follows: “ Defendants’ attorneys having failed to file or serve amendments to the statement on appeal filed June 19th, 1871, and plaintiff’s attorney having to-day presented the same to me for settlement, I certify it to be true and correct.” (Signed and dated April 25th, 1872.) The statement on appeal was served on respondents’ attorneys June 19th, 1871, and filed the same day. The statement on motion for a new trial was filed August 14th, 1871. The plaintiff appealed.

Drake, for Appellant.

Dodley Mankin, and Spencer, for Respondents.

The appeal is taken from the judgment, from the order striking out plaintiff’s notice of motion for a new trial, and from the order denying the motion for a new trial.

1. There is no error pointed out or appearing in the judgment roll, irrespective of the supposed statement on appeal, which statement, however, not having been settled or certified according to the requirements of the PracticeJAct, must be disregarded.

2. The propriety of the order striking out the notice of motion for a new trial cannot be considered, inasmuch as no statement in support of the appeal from the order is presented. Every presumption and intendment consistent with the record is to be indulged in favor of the order, and so far as the record here speaks it would not be inconsistent with it to presume that the plaintiff consented to the order, in which case, of course, he could not afterwards be heard to complain of it.

3. if or can we examine the order denying the motion for a new trial, inasmuch as the statement in support of the motion for a new trial was not agreed to nor certified.

Judgment and order affirmed.