Walsh v. Hutchings (1882) · DecisionDepot

Walsh v. Hutchings

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

California Supreme Court Mar 14, 1882 No. No. 6,886Published

Before: Myrick

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Holding. The court affirmed an order setting aside a default judgment because the record failed to demonstrate that the lower court lacked justification under Section 473 of the Code of Civil Procedure.

Issues

Whether the lower court was justified in setting aside a default judgment under Section 473, C. C. P.
Whether the Clerk's certification of papers used on a motion is sufficient for appellate review in the absence of a bill of exceptions or judicial identification.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“it is not for the Clerk to determine what papers or evidence the Court acted upon.”

“Disregarding these papers, it does not appear that the Court was not justified under Section 473, C. C. P., in making the order.”

Synopsis

Appeal prom Order—Record—Transcript—Identification of Papers— Bill of Exceptions—Clerk’s Certificate.—Upon an appeal from an order, opening a default, papers appeared in the transcript as printed, purporting to be an affidavit of the defendant, and a counter-affidavit of tho plaintiff; and there was a certificate of the Clerk, that the transcript contained full, true, and correct copies of all papers used upon the hearing of the motion, in the Court below; but there was no bill of exceptions or certificate of the Judge as to the identity of the papers.

Held : It is not for the Clerk to determine what papers or evidence the Court acted upon; and his certificate must be disregarded.

Myrick, J.: This is an appeal from an order setting aside a default judgment entered against the defendant. The action was commenced in the District Court in and for the county of Merced, and the summons was served on the defendant in the city and county of San Francisco, October 11, 1879. The default and judgment were entered by the Clerk November 26, 1879. The defendant moved to vacate the judgment and set aside the default, and for leave to answer, which motion was granted [229]by the Court. Papers appear in the transcript as printed purporting to be an affidavit of the defendant, and a counter affidavit of the plaintiff; but there is no bill of exceptions, and the Judge of the Court below does not certify or identify these papers as having been used on the motion. It is true, the Clerk of the Court below certifies that the transcript " contains full, true and correct copies of all papers used on the hearing in said District Court on the motion of said defendant Hutchings to set aside said default and judgment;” but it is not for the Clerk to determine what papers or evidence the Court acted upon. Disregarding these papers, it does not appear that the Court was not justified under Section 473, C. C. P., in making the order.

Order affirmed.

McKee, Sharpstein, and Thornton, JJ., concurred.

McKinstry, J., concurred in the judgment.

Morrison, C. J., also concurred in the judgment.

Walsh v. Hutchings

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