Buckman v. Whitney

By the Court,

Sawyer, J. At the January term, 1864, a motion was made to dismiss the appeal on the ground of delay in filing the transcript in this Court. As an excuse for delay, appellants alleged an inability to make up a transcript on account of a loss of the judgment roll, and asked permission to supply the missing papers. We then said : “ This Court has no control over the records of the Court below, and cannnot properly make any order to supply a lost record; but that duty is within the province of the District Court. * * * Upon proper application being made, it will be the duty of the Court below to supply the lost judgment roll by the ai’d of copies, or by some other means under its control.” It was then ordered that appellants have thirty days from and after the next term of the District Court “ in which to prepare and file in this Court the transcript on appeal in this cause, and that, in the [557]meantime, all proceedings on said motion in this Court be stayed.” (24 Cal. 267.) The object of the stay was to give appellants an opportunity, by motion in the Court below, to supply, if possible, the lost judgment roll, and restore the record of the District Court, thereby enabling them to obtain a transcript on appeal of the record thus restored, to be filed in this Court.

A document, claimed by appellants to be a transcript of the record, was filed in this Court in October, 1864, and some amendments were subsequently made in March last. Respondent now renews the motion to dismiss, on the ground that the document filed is not a transcript of the record in the Court below, and that no transcript has yet been filed in the case. A transcript on appeal is a true copy of a record, or part of a record, actually existing in the Court below. Essential portions of the record in this case having been lost, the first thing necessary to be done, to enable the party to procure a transcript was, if possible, to have the record in some way restored. And this could only be done by the Court below in the mode before indicated. Instead of applying to the Court below, upon notice to the opposite party, to restore its own record by supplying the defects occasioned by the loss, and then taking a transcript of the record thus restored, and filing it in this Court, appellants seem to have applied to the District Court to aid them in making up a record, to be used in this Court on appeal. And the Court after certain proceedings were had, accordingly ordered as follows: “ But to the end that said defendants may be able to perfect an appeal to the Supreme Court of this State, it is hereby ordered by the Court that the defendants, in order to perfect an appeal, to the Supreme Court of this State, may substitute and use copies of all or any papers in said cause which may be necessary for or requisite to the perfecting of said appeal as aforesaid, with like force and effect as the originals.