Hellings v. Duval

51 P. 335, 119 Cal. 199, 1897 Cal. LEXIS 879

• Court: California Supreme Court
• Decided: December 8, 1897
• Docket: S. F. No. 973
• Status: Published

Opinion

TEMPLE, J.

This is a motion to dismiss the appeal from the judgment, on the ground that the time for filing the transcript on appeal has expired and no transcript has been filed, and because the pretended record which was filed contains no copy of the judgment-roll.

The first ground is based upon the informal certificate to the transcript. The appellant has produced a proper certificate, which we think he should be allowed to add to his record. This disposes of the first point.

The objection that some portions of the judgment-roll have been omitted is not a ground for the dismissal of an appeal. The remedy of the respondent in such case is to notify the appellant of his exceptions, at least five days before the hearing of the appeal, under rule XV of this court. The appellant will then have an opportunity to supply the papers, and, failing to do so, must take the risk of having his appeal dismissed.

Appellant is allowed to amend the certificate to the transcript, and thereupon the motion to dismiss is denied.

McFarland, J., and Beatty, C. J., concurred.