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Schreiber v. Whitney

60 Cal. 431 Court Department One.] Decision date 1882-05-12 Docket No. 6,935 English

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p. 431
[No. 6,935.
Department One.]
May 12, 1882.
JACOB SCHREIBER et al. v. J. H. WHITNEY et al.

Headnote

New Trial—Authentication of Statement—Certificate.—A motion for new trial was submitted upon a statement certified to be correct by the attorneys of both parties. Held: The statement not being signed and certified by the Judge of the Court below, as required by Sub. 4, § 659 C. C. P., must be disregarded.
Appeal from a judgment for the defendants and an order denying a new trial in the Nineteenth District Court, City and County of San Francisco. Wheeler, J.
Material allegations of the complaint were denied by the answer and there were no findings.
The following stipulation is attached to the statement appearing in the transcript:
“It is herebystipulated that the foregoing statement contains all the evidence and copies of all the original papers used in the trial of said cause, as they appear in the records and files of the Clerk of said Court.
“And it is agreed that the motion for a new trial be submitted upon said record.
“September 11, 1879.
“George Turner,
“Attorney for Plaintiffs and Motion.
“Garber & Thornton & Teal,
“Attorneys for Defendants.”
p. 432
Geo. Turner, for Appellant.
The Court has always enforced stipulations as being a waiver of objection, very rigidly. (Weil v. Paul, 22 Cal. 493 ; Godchaux v. Mulford, 26 id. 320; Thompson v. Connolly, 43 id. 638; McCreery v. Everding, 44 id. 248; Sarver v. Garcia, 49 id. 219; Hill v. Finnigan, 54 id. 311; Donner v. Palmer,. 51 id. 630.)
The “Record” shows that the “Statement on motion for new trial” was agreed to by counsel. (Vide Transcript, 210.) “It is agreed that motion for a new trial be submitted on said record. Garber & Thornton & Teal, Attorneys for Defendants”—which shows the “Record” and “filing” were all “by consent.”
Garber & Thornton and Benj. Teal, for Respondent.

The document in the transcript, purporting to be a statement on motion for new trial, is not signed and certified by the Judge of the Court below, as required by Sub. 4, Sec. 659, C. C. P., and must be disregarded.

There is no error in the judgment roll.

Judgment and order affirmed.