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District Court of Appeal, Third District, California.


Civ. 6665.

Decided: April 15, 1942

Ronald D. Wolfe, of San Francisco, for appellant. Charles L. Gilmore, of Sacramento, for respondent.

Upon petition for rehearing the respondent suggests that the order of the trial court granting a new trial, and the notice of appeal therefrom, are not properly certified by the judge as required by section 953 a of the Code of Civil Procedure. Drummond v. Drummond, 39 Cal.App.2d 418, 422, 103 P.2d 217; 2 Cal.Jur. 607, sec. 329. No motion to dismiss this appeal was made under rule V of the rules for the Supreme Court and District Courts of Appeal, for the lack of a proper certificate of the judge, or at all. On examining the transcript on appeal it appears that the order granting a new trial, the notice of appeal, and all other pleadings and proceedings in the case were presented to the judge for settlement in one document attached to the reporter's transcript of the evidence, and that the judge certified on June 18, 1941, to the correctness of the 138 pages of evidence adduced at the trial, and further certified to the proceedings attached thereto, including the order granting a new trial and the notice of appeal, in the following language: “I further certify that the transcript is true and correct, and the same is hereby settled and allowed.”

We assume the “transcript” which was certified by the judge, as required by section 953a of the Code of Civil Procedure, included everything attached to the document which was presented to him for the purpose of settling the same.

There is no merit in the suggestion that the proceedings which transpired subsequent to the entry of judgment are not properly certified by the judge.

The petition for rehearing is denied.


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