Wilson v. Dougherty (1872) · DecisionDepot

Wilson v. Dougherty

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1872 No. No. 3,446Published

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Holding. The court affirmed the judgment and orders because the appellant failed to provide a settled or certified statement on appeal, precluding review of the merits.

Issues

Whether the judgment roll contains reversible error.
Whether the order striking the notice of motion for a new trial is reviewable without a supporting statement.
Whether the order denying the motion for a new trial is reviewable without a certified statement.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Every presumption and intendment consistent with the record is to be indulged in favor of the order”

“the statement in support of the motion for a new trial was not agreed to nor certified.”

Synopsis

Settlement oe Statement.—A statement, whether on appeal or on motion for a new trial, cannot be settled by a certificate of the Judge, written in the printed transcript, on appeal to the Supreme Court.

Statement on Appeal ebom Order.—On an appeal from an order striking out a notice of motion for a new trial, a statement in support of the appeal must he presented.

Order oe Court Presumed to be Correct.—Every presumption consistent with the record is to be indulged in favor of the correctness of an order of Court, and if there is no statement showing the contrary, it will he presumed that an order striking out a notice of motion for a new trial was made by consent.

Order Denying New Trial.—The Court will not review an order denying a motion for a new trial if the statement is neither agreed to nor certified.

By the Court: The appeal is taken from the judgment, from the order striking out plaintiff’s notice of motion for a new trial, and from the order denying the motion for a new trial.

1. There is no error pointed out or appearing in the judgment roll, irrespective of the supposed statement on appeal, which statement, however, not having been settled or certified according to the requirements of the PracticeJAct, must be disregarded.

2. The propriety of the order striking out the notice of motion for a new trial cannot be considered, inasmuch as no statement in support of the appeal from the order is presented. Every presumption and intendment consistent with the record is to be indulged in favor of the order, and so far as the record here speaks it would not be inconsistent with it to presume that the plaintiff consented to the order, in which case, of course, he could not afterwards be heard to complain of it.

3. if or can we examine the order denying the motion for a new trial, inasmuch as the statement in support of the motion for a new trial was not agreed to nor certified.

Judgment and order affirmed.

Wilson v. Dougherty

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