Winder v. Hendrick

Department No, 1, McKinstry, P. J.: Motion to dismiss appeal from judgment.

1st. The respondent claims that the appeal should be dismissed, because of the failure of appellant to serve and file the printed transcript within the period fixed by the rules of this Court. The time within which the transcript must be served and filed, the penalty for failure to serve and file within such time, and the evidence upon which this Court will enforce the penalty, are all regulated by Rules of Court. The second rule requires that the appellant shall file and serve his printed transcript within forty days after the appeal is perfected; the third provides that if the transcript be not filed within the time prescribed, the appeal may be dismissed. The fourth rule is as follows:

[276]“ On a motion to dismiss an appeal, for a failure to file the transcript within the prescribed time, there shall be presented the certificate of the Clerk below, under the seal of the Court, certifying the amount or character of the judgment or order appealed from, the date of its rendition, the fact and date of the filing of the notice of appeal, together with the fact and date of service thereof on the adverse party, and the character of the evidence by which said service appears, the fact and date of filing the undertaking on appeal, and that the same is in due form; the fact and time of the settlement of the bill of exceptions and the statement on appeal, if there be any; and also, that the appellant has received a duly certified transcript, of that he has not requested the Clerk to certify to a correct transcript of the record, or - if he has made such request, that he has not paid the fees therefor, if the same have been demanded.”

In the case before us, respondent has not presented the certificate of the Clerk, made necessary by rule four.

2nd. But we think the certificate of the Clerk to the printed matter, asserted to be a transcript of the record, does not comply with the 953rd section of the Code of Civil Procedure.

Section 953 reads:

“ The copies provided for in the last three sections must be •certified to be correct by the Clerk or the attorneys, and must be accompanied with a certificate of the Clerk or attorneys that an undertaking on appeal, in due form, has been properly filed, or a stipulation of the parties waiving an undertaking.”