Fitzpatrick v. Fitch

Decided March 31, 1890

California Supreme Court · decided 1890-03-31

<p>Appeal—Order Changing Venue — Transcript—Authentication of Papers — Clerk’s Certificate. —Upon appeal from an order changing the place of trial of an action, when the papers inserted in the transcript upon which the action of the court below is alleged to have been based are not authenticated, either by bill of exceptions or by certificate of the judge, as having been used on the hearing of the motion, they cannot be considered, and it must be presumed that the action of the court below was correct. The certificate of the clerk is not a sufficient authentication.</p>

Cited by 1 later decisions — most recently May 1921

1 state decisions

Relies on Nash v. Harris · Von Glahn v. Brennan · Walsh v. Hutchings

Good law ✅— No negative treatment on recordhow we know

Decided 1890-03-31

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Foote, C.

¶1— This is an appeal from an order changing the place of the trial of an action.

¶2The papers in the transcript upon which the action of the court below is alleged to have been based are not shown, either by bill of exceptions or certificate of the judge, to have been used on the hearing of the motion, which was granted.

¶3The certificate of the clerk appended to the transcript is in no sense such identification as is necessary. (Von Glahn v. Brennan, 81 Cal. 261-264; Walsh v. Hutchings, 60 Cal. 228, 229; Nash v. Harris, 57 Cal. 243, 244; Larkin v. Larkin, 76 Cal. 323, 324.)

¶4And the presumption is that the action of the court below was correct. We therefore advise that the order be affirmed.

¶5Hayne, C., and Belcher, G. C., concurred.

The Court.

¶6For the reasons given in the foregoing

¶7opinion, the order is affirmed.