Carpentier v. Bartlett (1881) · DecisionDepot

Carpentier v. Bartlett

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

California Supreme Court Aug 1, 1881 No. No. 7,849Published

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Holding. The court denied a motion to dismiss an appeal because the respondent's affidavit of service could not substitute for the mandatory Clerk's certificate required by court rules.

Issues

Whether a motion to dismiss an appeal should be granted when the Clerk's certificate fails to show service of the notice of appeal.
Whether an affidavit of service can be received in lieu of the Clerk's certificate required by court rules.

Disposition. Motion denied.

Quotations verified verbatim against the opinion

“The motion to dismiss the appeal in this case must be denied.”

“that can not be received in lieu of the Clerk’s certificate, which the rule of this Court requires.”

Synopsis

Appeal from the Superior Court of Ventura County.. Hines, J.

The Court: The motion to dismiss the appeal in this case must be denied. The Clerk’s certificate does not show that any notice of appeal had been served. On the contrary, he does certify that “ notice of appeal was never served, as appears from the files.” The respondent attempts to supply the omission by an affidavit of service of said notice. But that can not be received in lieu of the Clerk’s certificate, which the rule of this Court requires. (See Frederick v. Tierney, 54 Cal. 583.)

Motion denied.

Carpentier v. Bartlett

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