Smith v. Trefry

California Supreme Court

Smith v. Trefry

12 P. 351, 71 Cal. 404, 1886 Cal. LEXIS 601

CourtCalifornia Supreme Court

DecidedDecember 15, 1886

DocketNo. 11876

StatusPublished

Cited by1 cases

This text of 12 P. 351 (Smith v. Trefry) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Trefry, 12 P. 351, 71 Cal. 404, 1886 Cal. LEXIS 601 (Cal. 1886).

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Opinion

Myrick, J.

Motion to dismiss appeal.

Judgment was rendered in favor of plaintiff November 1, 1885. Notice of appeal from the judgment was filed, and served June 18, 1886. No transcript on appeal had been filed, and we have the certificate of the clerk of the court below that the appellant has not requested the clerk to certify to any transcript. Under such circumstances, the motion must be granted.

If, as is stated in a subsequent certificate of the clerk, a motion for new trial is pending in the court below, together with a settlement of a bill of exceptions to be used on such motion, the effect of such proceedings will be considered if an appeal should hereafter be taken from the ruling, when made on the motion for new trial. Until then we must regard the appeal, as the appellant has characterized it, an appeal from the judgment; and no transcript having been filed or prepared within the time prescribed therefor, the appeal is dismissed, but without prejudice.

Sharpstein, J., McKee, J., Morrison, C. J., and Thornton, J., concurred.

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Myrick, J.

Motion to dismiss appeal.

Judgment was rendered in favor of plaintiff November 1, 1885. Notice of appeal from the judgment was filed, and served June 18, 1886. No transcript on appeal had been filed, and we have the certificate of the clerk of the court below that the appellant has not requested the clerk to certify to any transcript. Under such circumstances, the motion must be granted.

If, as is stated in a subsequent certificate of the clerk, a motion for new trial is pending in the court below, together with a settlement of a bill of exceptions to be used on such motion, the effect of such proceedings will be considered if an appeal should hereafter be taken from the ruling, when made on the motion for new trial. Until then we must regard the appeal, as the appellant has characterized it, an appeal from the judgment; and no transcript having been filed or prepared within the time prescribed therefor, the appeal is dismissed, but without prejudice.

Sharpstein, J., McKee, J., Morrison, C. J., and Thornton, J., concurred.

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Bluebook (online)

12 P. 351, 71 Cal. 404, 1886 Cal. LEXIS 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-trefry-cal-1886.

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