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Richardson v. City of Eureka

Supreme Court of California
Nov 25, 1891
92 Cal. 64 (Cal. 1891)

Opinion

         Department One

         Motion to dismiss an appeal.

         COUNSEL

          J. N. Gillett, for Appellant.

          E. W. Wilson, and J. W. Turner, for Respondent.


         JUDGES: Garoutte, J. Harrison, J., and Paterson, J., concurred.

         OPINION

          GAROUTTE, Judge

         Respondent moves to dismiss the appeal herein from the judgment [28 P. 103] and order denying a new trial, upon the ground that appellant has not furnished this court with a transcript containing a copy of the judgment roll in said cause, as required by sections 661 and 952 of the Code of Civil Procedure.

         Respondent further insists that the appeal from the order denying the motion for a new trial should be dismissed upon the grounds that, -- 1. The transcript on appeal shows that appellant did not file with the clerk or serve any notice of his intention to move for a new trial in said cause; 2. That the transcript shows that appellant did not move for a new trial in said cause; 3. That the transcript shows that appellant did not prepare or serve upon respondent any draught of a statement of the case, etc.          Since the motion to dismiss this appeal was noticed for hearing, appellant has supplied the judgment roll with a certified copy of the verdict, and there now appears to be nothing wanting necessary to a complete determination of the appeal. In Paige v. Roeding , 89 Cal. 69, it was held that an appeal would not be dismissed by reason of a defective judgment roll, when all the portions of the roll are before this court which are requisite to a full determination of the cause.

         In Pico v. Cohn , 78 Cal. 384, it was held that the notice of intention to move for a new trial was no part of the record on appeal. In that case the court said: "When the case comes to us, we must look to the statement or bill of exceptions, and the specifications in which the decision of the court below is not sustained by the evidence, and the specifications of errors of law, as our guide in reviewing the case, and to these alone."

         Any defects alleged to exist in the statement of the case will be considered when the cause comes before us upon its merits.

         Let the motion to dismiss the appeal be denied.


Summaries of

Richardson v. City of Eureka

Supreme Court of California
Nov 25, 1891
92 Cal. 64 (Cal. 1891)
Case details for

Richardson v. City of Eureka

Case Details

Full title:CHARLES RICHARDSON, Respondent, v. THE CITY OF EUREKA, Appellant

Court:Supreme Court of California

Date published: Nov 25, 1891

Citations

92 Cal. 64 (Cal. 1891)
28 P. 102

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