Mills v. Dearborn

Works, J. The questions attempted to be presented in this case depend upon a statement of the case which appears in the record. It is contended by the respondent that the statement should be stricken out, and must be disregarded by this court, because it was not filed in the court below at the time the motion for a new trial was submitted and denied.

The motion for a new trial was submitted December 10, 1887. There is no indorsement of filing on the statement as it is copied into the record, nor is there any evidence of any kind that it was then on file, or that it was before the court, or made the basis of the motion. The certificate of the clerk at the close of the transcript, after certifying to copies of papers constituting the judgment roll, recites: “And I further certify that the .foregoing printed transcript beginning at folio one (1), and ending at folio three hundred and seventy-three (373), excepting, however, and excluding the map attached to page 35 of said transcript, is a correct copy of a document filed in said court on the tenth day of February, 1888. And I further certify that the map attached to page 35 of said transcript is a true copy of said map [53]received by me and attached on the thirteenth day of February, 1888.” The “document” referred to is the entire transcript, commencing with the complaint and ending with the notice of appeal.

If this can be construed to be a certificate of the filing of the statement, it shows that it was not filed until two months after the motion for a new trial was passed upon. In addition to this, another certificate of the clerk is filed in support of the motion to strike out the statement which appears in the transcript, which certificate recites: “I have carefully examined all entries made in the register of actions of said superior court in the case of D. O. Mills, plaintiff, v. Lydia Dearborn et al., defendants, No. 720, and all of the original papers in said action, and that there is no entry in said register of actions of any 'statement on motion for a new trial’ having been filed in said action between April 4, 1887, and February 10, 1888, and that no paper whatever, indorsed or entitled, or purporting to be, a statement on motion for a new trial in said action, is contained among said original papers, other than a document which is not entitled or named on the back thereof, but which consists of numerous papers attached together, and on the back of the whole thereof marked, ‘ Filed February 10, 1888,’ and among which said papers so filed is one entitled on the face thereof, ‘ Statement on motion for a new trial.’ ”