Green v. McMann (1889) · DecisionDepot

Green v. McMann

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

California Supreme Court Jul 2, 1889 No. No. 13092Published

Before: McFarland, Thornton

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Holding. The court dismissed the appeal because the transcript failed to meet certification requirements regarding alterations and because the appellant failed to serve a substantially correct copy of the transcript upon the respondent.

Issues

Whether the transcript complied with court rules regarding printing, paper size, and formatting.
Whether the clerk's certificate was sufficient given the presence of numerous erasures and interlineations.
Whether the failure to serve a substantially correct copy of the transcript on the respondent warrants dismissal.

Disposition. dismissed

Quotations verified verbatim against the opinion

“We think that the motion to dismiss should be granted upon at least the third and fifth grounds stated.”

“it is clear that in this instance the certificate should have shown that the numerous erasures, interlineations, marginal writings, etc., were in the transcript when the certificate was given.”

“no matter under what circumstances the changes were made, it is apparent that no substantially correct copy of the transcript was served on respondent.”

Synopsis

Appeal—Dismissal — Defective Transcript.—When the transcript on appeal contains a large number of written erasures, alterations, and marginal corrections, and is not printed on such paper and in such form as the rules require, and is not certified as required by law (the certificate merely stating that the transcript is correct, without stating in terms that the papers are correct copies of the originals on file, and without stating that the erasures, interlineations, and alterations were made before the certificate was given), and if the copy served did not contain most of the corrections made in the original, the appeal will be dismissed for want of a sufficient certificate to the transcript, and for want of service of a substantially correct copy on the respondent.

Opinion — McFarland

McFarland, J. — Respondent moves to dismiss the appeal herein on seven different grounds, each of which is entitled- to consideration. We will notice a few of them.

1. The first is, that the transcript is not a printed transcript within the meaning of rule 2 of this court. The facts with reference to this point are, that although the original transcript is mainly in print, it contains a large number of erasures and twenty-three corrections and alterations in writing,— some between the printed lines, and others on the margin; and, in addition, there are certain capital letters scattered along the margin which, on their face, are of uncertain meaning. Of course, it would be allowable to thus correct one or two typographical errors in a printed transcript, but the condition in this respect of the transcript in the case at bar is beyond the reach of clemency.

2. The second ground is, that the transcript— not considering the erasures and written matter — is not printed on paper of the size required by the rule, and has no blank fly-sheet cover, etc., as the rules require. The facts on this point are as stated by respondent.

3. The third ground is, that the transcript is not certified as required by law- The facts on this point are:

1. That the certificate merely states that the “transcript is correct,” and does not state in terms that the papers are correct copies of the originals on file; and

2. That it does not state that the erasures, interlineations, and alterations were made before the certificate was given.

4. The fourth ground is, that “ the transcript contains so many errors "and corrections as to have become unintelligible.” It is difficult to say whether an inspection of the transcript establishes this allegation or not; it certainly tends strongly in that direction.

5. The fifth ground is, that “no copy of the transcript has been served upon this respondent, or his attorneys.”

[563]The facts on this point are, that the copy served contained only four of the corrections on the original transcript,— one of them being a paster.

Green v. McMann

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Synopsis

Opinion — McFarland

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Concurrence — Thornton

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