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Fitzpatrick v. Fitch

83 Cal. 490 Court Department Two. Decision date 1890-03-31 Docket No. 12686 English

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p. 490
[No. 12686.
Department Two.
March 31, 1890.]
EDWARD F. FITZPATRICK, Appellant, v. GEORGE K. FITCH and LORING PICKERING, Respondents.

Headnote

Appeal—Order Changing Venue — Transcript—Authentication of Papers — Clerk’s Certificate. —Upon appeal from an order changing the place of trial of an action, when the papers inserted in the transcript upon which the action of the court below is alleged to have been based are not authenticated, either by bill of exceptions or by certificate of the judge, as having been used on the hearing of the motion, they cannot be considered, and it must be presumed that the action of the court below was correct. The certificate of the clerk is not a sufficient authentication.
Appeal from an order of the Superior Court of San Mateo County changing the place of trial.
The facts are stated in the opinion.
George G. Ross, for Appellant.
Mastick, Belcher & Mastick, for Respondents.

— This is an appeal from an order changing the place of the trial of an action.

The papers in the transcript upon which the action of the court below is alleged to have been based are not shown, either by bill of exceptions or certificate of the judge, to have been used on the hearing of the motion, which was granted.

The certificate of the clerk appended to the transcript is in no sense such identification as is necessary. (Von Glahn v. Brennan, 81 Cal. 261 -264; Walsh v. Hutchings, 60 Cal. 228 , 229; Nash v. Harris, 57 Cal. 243 , 244; Larkin v. Larkin, 76 Cal. 323 , 324.)

And the presumption is that the action of the court below was correct. We therefore advise that the order be affirmed.

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

For the reasons given in the foregoing

opinion, the order is affirmed.

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