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McAulay v. Truckee Ice Co.

79 Cal. 50 Court Cal. Decision date 1889-04-24 Docket No. 12919 English

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p. 50
[No. 12919.
In Bank.
April 24, 1889.]
THOMAS McAULAY, Appellant, v. TRUCKEE ICE COMPANY, Respondent.

Headnote

Place of Trial—Order for Change—Presumption of Regularity— Appeal — Failure to Identify Papers. —An order changing the place of trial will he presumed to have been properly made, when the record on appeal from the order fails to contain any papers identified as having been used in the lower court on the hearing of the motion to change.
Appeal from an order of the Superior Court of Nevada County changing the place of trial.
The facts are stated in the opinion.
Fred Searls, for Appellant.
George A. Knight, for Respondent.

An appeal from an order changing the place of trial of the cause.

The appellant in such case “must furnish the court .with a copy of the notice of appeal, of the .... order appealed from, and of papers used on the hearing in the court below.” (Code Civ. Proc., sec. 951.)

A copy of the notice of appeal, and of the order appealed from is in the record, but there are no papers identified as having been used on the hearing of the motion to change the place of trial.

The court below had the power in certain contingencies to make the order. (Code Civ. Proc., sec. 397.) “ There being no showing to the contrary,” it must be presumed to have exercised “its power properly, and within the

p. 51
rules prescribed by law,” (Pardy v. Montgomery, 77 Cal. 326 .)

We therefore advise that the order be affirmed,

Hayne, C., and Belcher, C. C., concurred.

For the reasons given in the foregoing opinion, the order is affirmed.

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