Sutton v. Symons (1893) · DecisionDepot

Sutton v. Symons

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

California Supreme Court Mar 8, 1893 No. No. 18163Published

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Holding. The court dismissed the appeal because it was not filed within the sixty-day statutory period required for appeals from orders made after final judgment.

Issues

Whether an appeal from an order striking a statement on motion for a new trial was timely filed.
Whether the court should strike portions of the transcript alleged to be outside the record.

Disposition. Appeal dismissed; motion to strike denied.

Quotations verified verbatim against the opinion

“The appeal in this case was taken too late, and must be dismissed.”

“If the matters to which counsel object form no part of the record, they will not be considered by the court when the merits of the appeal are before us for determination.”

Synopsis

New Trial — Order Striking out Statement — Appeal — Dismissal. — An order striking out a statement on motion for a new trial is an order made after final judgment, from which an appeal must he taken within sixty days; and an appeal taken therefrom after the expiration of such time will he dismissed.

Appeal — Striking out Parts op Transcript. —A motion in the supreme court to strike out portions of a transcript, upon the ground that they are no part of the record, is not proper practice, and will be denied. If the matters sought to be stricken out form no part of the record, they will not he considered by the court upon the hearing of the case upon its merits.

The Court. Respondent has moved to dismiss the appeal from an order of the superior court of Tuolumne County striking out appellants' statement on motion, for a new trial, upon the ground that it was not taken in time. Such an order is an order made after final judgment, and an appeal therefrom must be taken within sixty days. The appeal in this case was taken too late, and must be dismissed. (Calderwood v. Peyser, 42 Cal. 110; Clark v. Crane, 57 Cal. 633.)

Respondent also makes a motion to strike out certain portions of the transcript, upon the ground that they are no part of the record. The motion will be denied. Such a practice is not recognized in this court. If the matters to which counsel object form no part of the record, they will not be considered by the court when the merits of the appeal are before us for determination.

The motion to dismiss the appeal will be granted; the motion to strike out will be denied.

Sutton v. Symons

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