Adams v. Dohrmann

McKee, J. The appeal in hand is from the final judgment in this case, and from an order denying a motion for a new trial.

The notice of intention to move for a new trial designated that the motion Avould be made “on a statement of the case, and on the papers and records in the cause.”

In the transcript there is a paper marked, “ defendant’s proposed statement on motion for a new trial and on appeal,” which appears to have been filed April 10, 1880; but it Avas not, at any time, signed by the judge of the court, nor certified by him to the effect that it had been settled and allowed as was required by section 659 of the Code of Civil Procedure.

When notice is given of a motion for a new trial, to be made on a statement of the case, it is the duty of the moving party to propose such a statement, and have it settled, signed, and certified by the judge. The statement must be authenticated in that Avay before it can be filed with the clerk of the court. (§ 659, supra.) After it has been signed and certified and filed, the motion upon it may then be brought to a hearing by either party; and as the statement used on the hearing, it constitutes part of the record of the case on appeal from the order granting or denying the motion. But the signature and certificate of the judge are indispensable. (Schreiber v. Whitney, 60 Cal. 431; Keller v. Lewis, 56 Cal. 466.) Without them there is no statutory statement on which the motion may be heard. [419]An unauthenticated, paper in the transcript, purporting to be a statement, is no part of the record on appeal, and must be disregarded. Mor can this court return the record of a case to the court below for the purpose of having that court supply, in a document in the transcript, those things which were indispensably necessary to constitute it part of the record in the first instance. The signature and certificate of the judge to a statement on motion for a new trial, after the motion has been heard and determined, and an appeal taken from the order, would not (as Mr. Justice Myrick observed in Keller v. Lewis, supra) aid the appellant, for the Code of Civil Procedure requires that the bill be certified, as allowed, “ before filing.” (§ 650, Code Civ. Proc.) This court cannot make a record or supply the existence of papers which constitute part of a record, on which a court below may act. Mor can we amend a record of a lower court—that must be done in the lower court; and after an appeal has been taken and, perfected, that court, losing, as it does, jurisdiction over the case, has no power to make another record by adding to the record already made a new statement on motion for a new trial or on appeal.