Harrison v. Cousins

HALL, J.

This is an appeal by the plaintiff from an order, granting the motion of defendant, H. D. Cousins, for an order changing the place of trial of the action from the city and county of San Francisco to the county of San Bernardino.

Respondent objects to the hearing of the appeal upon its merits, and asks that the appeal be dismissed for the reason that there is no proper record before this court, in that the papers used or claimed to have been used on the hearing of the motion are not authenticated by being incorporated into a bill of exceptions as required by rule XXIX of the supreme court.

The transcript on appeal filed in this court contains no bill of exceptions, nor any record made up in accordance with the provisions of section 953a of the Code of Civil Procedure.

The transcript does contain what purport to be copies of various papers, including the complaint, affidavit of merits of H. D. Cousins, including certain exhibits, designated by the letters A, B, C and D, attached thereto, notice of motion for change of venue, demand for change of venue, demurrer

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of H. W. Hutton, (copy of) certificate of clerk of superior court of San Bernardino county as to correctness of foregoing papers, minute order of court granting the change of venue, notice of order, notice of appeal, a stipulation not signed, certificate of clerk of superior court of San Francisco to the correctness of the copy of the minute order granting the change of venue and of the notice of appeal, and to the giving of an undertaking on appeal. These papers are followed by a certificate signed by the judge of the superior court of the city and county of San Francisco as follows: “I ... do hereby certify that upon the hearing of the motion of H. D. Cousins, one of the defendants in the above-entitled action, for a change of venue to the Superior Court of the State of California, in and for the county of San Bernardino, the only papers considered were the complaint in said action, the affidavit of merits of H. D. Cousins, with four exhibits, A, B, C, and

D;

said Cousins’ notice of motion for a change of venue, and the demurrer of H. W. Hutton, one of the defendants above named; that said motion was heard by me, and that I granted the order changing the venue in said action; that true and correct copies of the above-named papers which were considered by me upon the hearing of said motion are set out in the foregoing transcript.”