Opinion
Department 1. Appeal from superior court, Tulare county.
Action brought by the attorney general, January 19, 1884, to cancel a patent issued by the state of California to the defendants, November 23, 1883, for a tract of swamp and overflowed land in Tulare county. On motion of the attorney general the action was dismissed July 11, 1885. The relators appealed to the supreme court.
The motion to dismiss the appeal was based on the fact that the clerk had not properly certified the transcript, as required by rule 4 of the supreme court, and that certain papers had been omitted; and was made under rule 13, which is as follows: ‘Exceptions or objections to the transcript, statement, the bond or undertaking on appeal, the notice of appeal, or to its service, or any technical exception or objection to the record in civil cases, affecting the right of the appellant to be heard on the points of error assigned, which might be cured on suggestion of diminution of the record, must be taken and notified to the appellant in writing, at least five days before the hearing, or they will not be regarded; and, when so noted, it shall be the duty of the appellant to present and file at the hearing of the cause such additional record, certificate, or other matter, if such there be, to remove or answer the objection or exception so taken; otherwise such objection or exception, if well taken, shall prevail.’
The following is rule 4: ‘On a motion to dismiss an appeal for a failure to file the transcript within the prescribed time, there shall be presented the certificate of the clerk below, under the seal of the court, certifying the amount of character of the judgment or order appealed from, the date of its rendition, the fact and date of the filing of the notice of appeal, together with the fact and date of service thereof on the adverse party, and the character of the evidence by which said service appears; the fact and date of filing and undertaking on appeal, and that the same is in due form; the fact and the time of settlement of the bill of exceptions and the statement on appeal, if there be any; and also that the appellant has received a duly-certified transcript, script, or that he has not requested the clerk to certify to a correct transcript of the record, or, if he has made such request, that he has not paid the fees therefor, if the same have been demanded.’ COUNSEL
Frederick P. Stratton, Latimer & Morrow, and Wm. M. Pierson, for appellants.
Brown & Daggett, for respondent.
OPINION
[2 Cal.Unrep. 673] THE COURT.
The certificate of the clerk of the court below, filed at the hearing, is sufficient, and the motion to dismiss is denied.
On the authority of People v. North San Francisco H. & R. R. Ass’n, 38 Cal. 564, the judgment is reversed, and cause remanded.