Boston v. Haynes

31 Cal. 107

• Court: California Supreme Court
• Decided: July 1, 1866
• Status: Published

Opinion

By the Court, Sawyer, J.:

The notice of appeal appears by the record to have been served on the 12th, and filed on the 13th of September, and respondents move to dismiss on that ground. It has often been held that the statute requires the filing to precede, or be contemporaneous with the service. The appellant’s attorney seeks to obviate the objection by affidavit that the filing was, in fact, on the same day of the service; but this affidavit is met by a counter affidavit that the facts and the record correspond. If it were admissible, therefore, to contradict the record by affidavit, the appellant fails to satisfactorily show a mistake. But this Court must be governed by the record, as certified from the District Court. This Court has no authority to correct the records of the District Courts. If there is any error in the records of those Courts, the application to correct it must be made to the Court in the record of which the error exists. The record in this Court consists of a transcript of a record, or part of a record, of the Court of original-jurisdiction, and we must be governed by the record as we find it.

Appeal dismissed.