Espinosa v. Gould

WASTE, P. J.

This is an appeal by the plaintiff from an order refusing to change the place of trial. Plaintiff, theretofore adjudged to be an incompetent person, brought this action against his guardian and the other defendants, seeking to have the proceedings, whereby he was declared an incompetent, set aside as null and void, and praying for damages in the sum of twenty thousand dollars against defendants Manuel Espinosa and R. C. McComish.

The defendants demurred to the complaint, whereupon the plaintiff filed a motion for a change of place of trial, alleging in his affidavit accompanying the motion a belief that he could not have an impartial trial in the county wherein the action was brought by reason of the alleged bias and prejudice of the people of the community against him, and an alleged personal dislike on the part of the trial judge. The latter filed a counter-affidavit, in which he denied any prejudice or bias against the plaintiff, and alleged that he never had entertained and did not feel a personal dislike against him. The motion came on for hearing and was denied, the order of the court reciting, after the introductory portion, “Documentary evidence is introduced, said motion is submitted to the court for consideration and decision without argument, counsel for respective parties stipulating that the testimony in case No. 6598 be considered as given herein, and the court denies said motion.”

[318]

. The appeal is taken by the alternative method under section 953a of the Code of Civil Procedure. The only record brought here is the clerk’s transcript, prepared on notice of the appellant. That notice specified, and the transcript contains only the pleadings, notices, affidavit, and notice of .motion by the plaintiff, notice of hearing, order of continuance, counter-affidavit of the trial judge, and the order denying the motion for change of place of trial. It is certified to by the clerk of the court but not by the trial judge.

[1]

It has long been settled, with regard to the affidavits used on a motion, that they must be identified and authenticated by the trial judge before they can be considered by the appellate court. The certificate of the clerk cannot take the place of the authentication by the judge. There is no other way in which the appellant can present to us the affidavits on the motion in question.