Majority
Headnote
Appeal—Absence op Certificate to Transcript—Affidavit of Appellant—Dismissal.—The absence of the certificate to the transcript on appeal, required by section 953 of the Code of Civil Procedure and by rule XI of the supreme court, cannot be supplied by the affidavit of the appellant that the transcript of the record is in all respects true and correct, and the appeal must be dismissed for the absence of such certificate without prejudice to another appeal.This is a motion on the part of the respondent to dismiss an appeal from a judgment of the superior court of Riverside county.
The transcript of the record contains no certificate either by the clerk or attorneys of the correctness of the same, nor does it contain any certificate of the clerk or attorneys that an undertaking on appeal in due form has been properly filed, or waiver thereof. (Code Civ. Proc., see. 953; rule XI, supreme court, 144 Cal. xlv, [78 Pac. vii].)
Appellant has presented an affidavit averring “the said tran script as the same is now of record is in all respects true and correct,” but the affidavit of appellant cannot be substituted for the certificate required by said section 953, Code of Civil Procedure, and the rules of this court, in the absence of which the judgment appealed from cannot be reviewed. (Ellis v. Bennet (Cal.), 3 Pac. 801 ; Pacific M. Life Ins. Co. v. Edgar, 132 Cal. 197 , [ 64 Pac. 260 ].)
The motion is granted and appeal dismissed, without prejudice to another appeal.
Allen, P. J., and Taggart, J., concurred.
Cases cited
- Ellis v. Bennet 3 Pac. 801 p. 115
- Pacific Mutual Life Insurance v. Edgar 132 Cal. 197 p. 115