Schammel v. Schammel

Foote, C. This is an appeal from an order made pendente lite, for counsel fees and alimony, in an action of divorce.

The only matter concerning it now to be considered is the motion to dismiss that appeal.

That motion alleges as grounds why it should be sustained:—

“ 1. Because said transcript of the record on appeal from said order fails to authenticate, identify, or show what papers were used on the hearing of said motion on the 16th of October, 1885, for alimony and counsel fees, and upon which said order was made and entered.

“ 2. Because there is no bill of exceptions or anything else in the record to show what papers were used on the hearing of said motion for alimony and counsel fees in the court below, and upon which the order appealed from was founded.”

In the case of Pieper v. Centinella Land Company, 56 Cal. 173, this court declared that the certificate of a judge of the trial court, similar to the one now under consideration, except that the former appeared in the transcript of the record of the cause, and the latter does not, was a sufficient identification of the papers used on the hearing of the motion.

And in that case the following language was used:—

“ The statute (i. e., Code Civ. Proc., sec. 951) prescribes no mode by which it shall be made to appear to this court on appeal what papers were used on the hearing of such a motion as the one before us. Under such circumstances, this court has the power to prescribe by a rule how such papers can be brought before it on appeal. This it can do in order to make effectual the appeal given by law. As it has such right to make a rule in advance, it has a like power to ratify and adopt the mode followed in this case. We shall consider the papers named in the judge’s certificate as properly before us.”

Under rule 13 of this court, “exceptions or objections [74]to the transcript, .... or any technical exception or objection to the record in civil cases affecting the right of the appellant to be heard on the points of error assigned, which might be cured on suggestion of diminution of the record, must be taken and notified to the appellant in writing, at least five days before the hearing, or they will not be regarded; and when so noted, it shall be the duty of the appellant to present and file at the hearing of the cause such additional record, certificate, or other matter, if such there be, to remove or answer the objection or exception so taken; otherwise such objection or exception, if well taken, shall prevail.”