Paige v. Roeding

26 P. 787, 89 Cal. 69, 1891 Cal. LEXIS 773

Opinion

McFarland, J.

— This cause is before us on a motion of respondents to dismiss the appeal, upon the ground that the transcript filed by appellants does not contain a copy of the judgment roll.

Section 950 of the Code of Civil Procedure directs that on an appeal from a final judgment the court must be furnished with a copy of the judgment roll; and section 954 provides that “ if the appellant fails to furnish the requisite papers, the appeal may be dismissed.” This power to dismiss might perhaps be properly exercised in extreme cases; but it frequently happens that the whole of a judgment roll is not “ requisite ” to the full determination of an appeal. And it would be unjust to dismiss an appeal merely because some part of the roll had been, inadvertently, perhaps, omitted from the transcript. If the omission be deemed material by respondent, he can easily remedy the supposed defect by suggestion of a diminution of the record. In the case at bar, the asserted defects in the copy of the judgment roll, which do not very clearly appear from the certificate of the clerk, are not important enough to authorize a dismissal of the appeal.

The motion to dismiss the appeal is denied.

Harrison, J., Paterson, J., Garoutte, J.3 and De Haven, J., concurred.