Muzzy v. D. H. McEwen Lumber Co.

HENS HAW, J.

This is an appeal by plaintiff from the order of the court changing the place of trial upon motion of defendant and transferring the cause for trial to the county of defendant’s residence. The action was to recover damages for breach of contract. Respondent on the appeal moves its dismissal upon the ground that there is no bill of exceptions nor' other authentication of the papers on appeal as required by rule XXIX of this court, (144 Cal. lii, [64 Pac. xii]). The transcript contains the complaint, the notice of motion to change the place of trial, the supporting affidavit, and demand for change of place of trial filed with defendant’s

demurrer

to the complaint. To these papers is appended the order of court granting the motion. There is no attestation nor authentication to any of these papers other than the certificate of the clerk to the effect that the transcript contains full and true copies of original papers on file in his office “all of which were used on the hearing of said motion.” That this is not a proper method of authentication may not be doubted. The proper method, of course, is by bill of exceptions certified to by the judge. Moreover, waiving the question of the power of the clerk, the authentication is incomplete, for while it states that these papers were used upon the hearing of the motion, it is nowhere made to appear that they were

all

of the papers, and thus this certificate of the clerk is subject to the additional objection considered fatal in

Shain

v.

Eiker

[687]

enkotter,

88 Cal. 13, [25 Pac. 966]. There the papers embodied in the appeal bore the indorsement of the judge that they were read upon the motion. This court said that there was no bill of exceptions or other proper certification to show “that

all

of the papers used on the hearing in the court below are before us in this transcript.” To this, however, respondent makes answer that his case comes within the exception noted in