BUTTERFIELD v. BUTTERFIELD

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District Court of Appeal, Fourth District, California.

BUTTERFIELD v. BUTTERFIELD.*

Civ. 1497.

Decided: January 27, 1934

Lovett K. Fraser, of Lakeport, for appellant. Jess G. Sutliff, of Independence, for respondent.

This is an appeal by the defendant from an order of the superior court denying defendant's motion for change of place of trial from Inyo county to Lake county.

The record on appeal is presented in the form of a typewritten transcript which is entitled “Transcript on Appeal.” It does not contain a bill of exceptions.

The transcript does contain what purport to be copies of various papers. The documents which are therein contained include the complaint filed in the action, demurrer to the complaint, affidavit of merits of the defendant, notice of motion for change of venue, demand for change of venue, minute order of court denying motion for change of venue and overruling demurrer, notices of denial of motion for change of venue and of the overruling of the demurrer, summons showing service of process on the defendant, order directed to defendant to show cause why he should not be required to pay a suitable sum of money, weekly or monthly, for the support of minor children, also attorney's fees and costs and expenses of suit, memorandum of points and authorities on the motion for change of venue and the demurrer, which memorandum was filed by defendant's counsel after the court had disposed of these matters, notice of appeal, request for transcript, certificate of county clerk to the correctness of the copies of the aforesaid documents. These papers are followed by a stipulation of counsel for both parties which is entitled “Stipulation To Transcript.” This document contains the following language:

“It is hereby stipulated that the foregoing transcript on appeal is correct, that the same shows true and correct copies of all papers on file in the county clerk's office of the county of Inyo, that the minute orders, therein contained, are full, true, and correct copies thereof as made and entered in the minutes of the superior court; that all papers on change of venue were duly served upon counsel for plaintiff; that the said foregoing papers shall constitute the transcript on appeal in this case and that the appeal from the order denying change of venue may be heard and determined upon the foregoing transcript, and the court may certify to the same without further notice.

“Dated: July 28th, 1933.

“Jess S. Sutliff,

“Attorney for plaintiff and respondent.

“Lovett K. Fraser,

“Attorney for defendant and appellant.”

Appended to the transcript is a certificate of the judge which is as follows:

“The attorneys in the above entitled action having stipulated that the foregoing transcript is correct and may be certified by me without further notice, therefore the foregoing transcript on appeal is hereby settled, allowed and certified, as true and correct of all the proceedings had on motion for change of venue.

“Dated: August 3rd, 1933.

“Wm. D. Dehy,

“Judge of the Superior Court.”

It is our conclusion that the above–described transcript does not present a properly authenticated record and that for this reason we are not justified in considering it. In the first place, the certificate of the county clerk presents no evidence of the authenticity of this record. Stern & Goodman Inv. Co. v. Danziger, 206 Cal. 456, 274 P. 748; Britt v. East Side Hardware Co., 25 Cal. App. 231, 143 P. 244; Patterson v. Rutherford, 39 Cal. App. 647, 179 P. 704. Equally ineffective as proper authentication of the record is the stipulation of counsel since the law provides that a judge alone may certify as to what evidence was received and what proceedings were had at the hearing before him. Manuel v. Flynn, 5 Cal. App. 319, 327, 90 P. 463; Pouchan v. Godeau, 21 Cal. App. 365, 131 P. 879; Clark v. McCain, 107 Cal. App. 668, 290 P. 901.

The certificate of the judge made pursuant to the stipulation of counsel goes no further than to certify that the transcript is a true and correct transcript of all the proceedings had on the hearing of the motion. It is manifestly insufficient and does not provide a proper authentication of the record. Harrison v. Cousins, 16 Cal. App. 515, 117 P. 564; Guyot v. Cassab, 118 Cal. App. 742, 745, 5 P.(2d) 912; Salinas v. Riverside Finance Co., 126 Cal. App. 675, 14 P.(2d) 1025.

Since the record is not authenticated either in the manner required by rule XXIX of the rules for the Supreme Court and District Courts of Appeal or in accordance with any provision of the law, we are not justified in giving consideration to it.

The order from which this appeal has been taken is therefore affirmed.

JENNINGS, Justice.

We concur: BARNARD, P. J.; MARKS, J.