Opinion
[Syllabus Material] Rehearing Denied 60 Cal. 280 at 283.
Appeal from an order denying the plaintiff's motion for a new trial in the Thirteenth District Court in and for the County of Fresno. Campbell, J.
COUNSEL
In Tregambo et al., Respondents, v. Comanche Mill & Mining Company, Appellants , 57 Cal. 505 (June 25, 1881), it was held that " when the demurrers were brought and deposited with the Clerk for filing they were in contemplation of law, as to the defendant on file in the case." (Engleman v. State , 2 Ind. 91; Bishop v. Coon, 13 Barb. 325; Lawson v. Falls , 6 Ind. 309. The undertaking was filed within five days after service of the notice of appeal within the meaning of § 950, C. C. P.
P. G. Galpin, for Appellants.
Stetson & Houghton and McAllister & Bergin, for Respondents.
No appeal has been taken in this case. ( C. C. P. § 940. Reed v. Kimball , 52 Cal. 325; Hastings v. Halleck , 10 id. 31; Estell v. Chapman , 15 id. 283.)
JUDGES: McKinstry, J. Ross, Sharpstein, Myrick, Thornton, and McKee, JJ., concurred.
OPINION
McKINSTRY, Judge
In Bank. The Court:
In denying a rehearing in this cause, we think it proper to say that the transcript shows that the notice of appeal was served on the eighteenth of December, 1879, and filed on the thirtieth of January, 1880. An attempt is made to show by affidavit before this Court, that it was filed at an earlier day, and within the time allowed by law. This cannot be allowed. It was so held in Boston v. Haynes , 31 Cal. 107. The record of the Court below cannot be altered or amended by proof made in this Court. If it is incorrect, that must be made to appear by proper evidence to the Court below, which has power to alter it so as to make it speak the truth. It would be a departure from all principle to allow a record sent to this Court to be assailed by evidence of less dignity than a record. (See Smith v. Brannan , 13 Cal. 107; Bonds v. Hickman , 29 id. 460; Satterlee v. Bliss , 36 id. 521.) The party must seek relief in the Court from which his appeal was prosecuted.
Hearing denied.