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$ 341. Authentication of statement.

The statement, when settled by the Judge, shall be signed by him, with his certificate that the same has been allowed and is correct; when the statement is agreed upon by the parties, they or their attorneys shall sign the same with their certificate that it has been agreed upon by them, and is correct. In either

In either case, when settled or agreed upon, it shall be filed with the Clerk.

See $ 195.

1. Certificate of the Judge or attorneys.- The statement of facts should be signerl, in all cases, by the Judges, except when agreed to by the parties or their attorneys. Hurley v. Young, 4 Cal. 254.

2. An appeal can be heard upon a bill of exceptions taken at the trial, if signed by the Judge. Johnson v. Sepulbeda, 5 Cal. 149.

3. A Judge can revoke his certificate to a settled statement on appeal, during the term at which the judgment was rendered; but after the term has expired it cannot be done. Branger & Driard v. Chevalier, 9 Cal. 351.

4. A statement on appeal is sufficient, when the Judge certifies that it is substantially correct. It is not necessary that the testimony should be stated in the precise words of each witness. Battersby v. Abbott, 9 Cal. 565.

5. It is no objection that the statement does not affirmatively show that the settlement was upon proper notice, or in the presence of both parties. In the absence of evidence to the contrary, the presumption of law is in favor of the regularity of all official acts. 1b.

6. Nor do affidavits used on motion to open the judgment form any part of the record, where there is no certificate of the Judge or Clerk, or an admission of counsel that they were used for that purpose. Ritter v. Mason, 11 Cal. 214.

7. A statement which was filed in the Court below, on motion for a new trial, and is neither agreed to by counsel nor settled by the Judge trying the case, has not sufficient authentication to constitute any portion of the record which this Court can notice. Doyle v. Seawall, 12 Cal. 425.

8. And a certificate of the Judge who tried the cause, made eight years after the trial, that he believed the exceptions taken were correctly noted in the Clerk's minutes of the testimony, cannot supply the place of a bill of exceptions. Castro y. Armesti, 14 Cal. 38.

9. A statement on appeal, certified by the Judge to be correct, according to his recollection, is not sufficient. Van Peli v. Littler, 14 Cal. 194.

10. Where documents and depositions are read or referred to, on the arguments of a motion for a new trial in the Court below, and are not embodied in the statement, it will be sufficient for the Judge to add, upon rendering his decision, a certificate of the matters thus read or referred to. This certificate will be sufficient identification of the documents and depositions used; and a copy of them, together with the statement and judgment roll, will constitute the only record necessary in the Supreme Court. Loucks v. Edmondson, 18 Cal. 293.


$ 342. Statement shall be annered to judgment roll or order appealed from.

The Clerk shall annex the statement, if the appeal be from a final judgment, to the judgment roll; if the appeal be from an order, to such order, or to a copy thereof.

$ 343. Appeal from an order made upon affidavit. [1854.] The provisions of the last five preceding sections shall not apply to appeals taken from an order made upon affidavit filed; but such affidavits shall be annexed to the order in the place of the statement mentioned in those sections.

§ 344. On appeal from a judgment the Court may review intermediate order.

Upon an appeal from a judgment, the Court may review any intermediate order involving the merits, and necessarily affecting the judgment.

See notes to $ 333.

§ 345. Remedial powers of the Appellate Court.

Upon an appeal from a judgment or order, the Appellate Court may reverse, affirm or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties; and may set aside or confirm, or modify any or all of the proceedings subsequent to or dependent upon such judgment or order, and may, if necessary or proper, order a new trial. When the judgment or order is reversed or modified, the Appellate Court may make complete restitution of all property and rights lost by the erroneous judgment or order; and when it appears to the Appellate Court that the appeal was made for delay, it may add to the costs such damages as may be just.

Sec N. Y. Code, \ 330.

1. Judgments directed in the court below.–The Court belox cannot refuse to give effect to the judgment of this Court; and a judgment entered by the Clerk, in such case, is just as binding as if entered in the Supreme Court itself. McMillan v. Richards, 12 Cal. 467.

2. It is not the practice of this Court to direct the entry of a judgment in the Court below, in actions at law, except where the facts have been found by the Judge who tried the cause, or by the special verdict of a jury, or where, from the character of an action or pleadings, one of the party is entitled to judgment without proof. Bagley v. Eaton, 10 Cal. 126.

3. The Court below allowed to enter judgment for plaintiff, on the return of the case, for the amount of the verdict, if plaintiff so desires; otherwise, to retry the cause. Reniff' v. Cynthia, 18 Cal. 669.

4. The law regards the substance more than the form, and where the proceeding, though in form a case of contempt, is in substance a private right, the Appellate Court will compel the Court below to issue an attachment to punish a contempo Merced Co. v. Fremont, 7 Cal. 130.

5. Where the Court below granted a nonsuit—the case being submitted on complaint on an undertaking and answer-the Supreme Court, while reversing the judgment below, refused to enter judgment for plaintiff, although the answer presented no defense, holding, that as there was no trial below, the Court could not know what course defendants would have taken, by amendments or otherwise, by way of defense to the action. McMillan v. Dana, 18 Cal. 339.

6. The Court, on reversing a judginent, can render such judgment as the Court below should have done. Gahen v. Neville, 2 Cal. 81; Bidleman v. Kewen, Id. 248. 7. When the Court below has wrongfully refused to dissolve an attachment improperly issued, the Supreme Court will order it dissolved, even if the final judgment is affirmed on a review of the case. Griswold v. Sharp, 2 Cal. 17.

8. The Supreme Court has no power to grant an injunction pending an appeal. Hicks v. Jlichuel, 15 Cal. 107.

9. Instead of remanding a cause for a new trial, where the judgment below is erroneous, this Court will so modify it as finally to settle the controversy, when the rights of the parties appear from the records to be finally ascertained. Persse v. Cole, 1 Cal. 369.

10. After a judgment has been rendered by the Supreme Court, a material modification of such judgment should not be made upon a petition for a rehearing -the rehearing should first be granted. Clark v. Boyreau, 14 Cal. 634.

11. When will new trial be ordered. When it is apparent that, in case a new trial should he granted, the verdict of the jury must be in favor of the plaintiff, the judgment of the Court below, in favor of the plaintiff, will not be disturbed. Yohler y. Falsom, i Cal. 207.

12. Where, on appeal, the complaint is so radically defective as not to authorize the judgment of the Court below,,a new trial may be granted, with leave to the plaintiff to amend his complaint, on such terms as the Court below may deem just. Sterling v. Hanson, 1 Cal. 478.

13. When it is manifest, from the testimony stated in the record, that the ver. dict of the jury must have been given under a state of great excitement, preventing a fair and just trial, and the Court below has refused a new trial, this Conrt will reverse the judgment, and order a new trial. The People v. Acosta, 10 Cal. 195.

14. Restitution of property and rights.—The eighth section of the Act concerning Courts of Justice, (sce Appendix) which provides that when a "judgment or order is reversed or modified, this Court may make complete restitution of all property and rights lost by the erroneous judgment or order,” does not cover the case of a judgment for the recovery of money. It applies only to those cases where the judgment operates upon specific property in such a manner that its title is not changed, as by directing the possession of real estate, or the delivery of documents, or of particular personal property in the hands of the defendant, and the like. Farmer v. Rogers, 10 Cal. 335.

15. The three hundred and forty-fifth section of the Practice Act, authorizing the Supreme Court, on the reversal or modification of the judgment or order below, to make restitution of the property and rights lost hy the erroneous judgment or order, does not exclude the lower Court from exercising the same power. Reynolds v. Harris, 14 Cal. 667.

16. Effects of reversal.–After reversal of an erroneous judgment, the parties in the Court below have the same rights which they originally had. Phelan v. Supervisors of San Francisco, 9 Cal. 15.

17. Therefore, when a final judgment on demurrer to the complaint sustaining the demurrer was reversed, the plaintiff had the right to amend, on application to the Court below. Id.

18. A judgment of reversal” in the Supreme Court is not necessarily a bar to further proceedings in the action. The opinion rendered with the judgment is advisory to the Court below; and after the reversal of an erroneous judgment, the parties have the same rights which they had originally. Stearns v. Aguirre, 7 Cal. 443.

19. Where a judgment is rendered in this Court reversing the judgment of the Court below, and remanding the case for further proceedings, it becomes the law of the case, though crroneous. Gunter v. Laffan, 7 Cal. 588; Clary v. floagland, 6 Cal. 685.

20. Where a judgment is rendered, and an appeal taken to this Court, the Court below loses control over the judgment, and an order amending the judgment is erroneous. Bryan v. Berry, 8 Cal. 130.

See ante, page 191, Nos. 47–49. 21. Damages and costs.- Ten per cent damages was awarded by the Supreme Court where the appeal was for delay. Russell v. Albert et al. 2 Cal. 158.

22. Where the respondents obtained a judgment on the twenty-third of December, 1851, and the appeal bond was filed on the twenty-fourth of December, and a certificate of the Clerk of the same Court, dated February 2d, 1852, that no transcript, record, or other papers in the cause had been filed, and the aftidavit of respondents produced that the appeal was taken for delay, the Court ordered the appeal to be dismissed, with ten per cent. damages and costs. Buckley v. Marse, 2 Cal. 149.

23. When the objection to the judgment was entirely unsupported, the judgment was affirmed, with ten per cent. damages. Bates v. Fisher, 2 Cal. 355.

24. When the questions raised by the record, on appeal in this Court, have been repeatedly settled by this Court, or are decided by reference to plain elementary principles of law, the judgment of the Court below will be atfirmed, with damages. Pinkhum v. Wemple, 12 Cal. 449.

25. Where a judgment was affirmed in part, and reversed in part, the respondent was allowed his costs in Court below, but was required to pay the costs of the appeal. Cole v. Swanston, 1 Cal. 51.

26. Where an appellant has failed to file a transcript of the record showing that the appeal had been perfected, the Court ordered it dismissed, with ten per cent

Pucheco v. Bernal, 2 Cal. 150. 27. Fifteen per cent. damages awarded in De Witt v. Porter, 13 Cal. 171 ; twenty per cent. in Nickerson v. California Stage Company, 10 Cal. 520.



§ 346. Appellant shall furnish requisite papers.

[1854.] On an appeal from a final judgment, the appellant shall furnish the Court with a copy of the notice of appeal, the julyment roll, and the statement annexed, (if there be one) certified by the Clerk to be a correct copy. On appeal from a judgment rendered on an appeal, or from an order, the appellant shall furnish the Court with a copy of the notice of appeal, the judgment or order appealed from, and a copy of the papers used in the hearing of the Court below; such copies to be certified by the Clerk to be correct. If any written opinion be placed on file on rendering the judgment, or making the order in the Court below, a copy shall be furnished. If the appellant fail to furnish the requisite papers, the appeal may

be dismissed.

1. Record, what to contain.-On an appeal from an order made on affidavits filed, nó statement is necessary. The affidavits must be annexed to the order, in place of a statement, and the certificate of the Clerk should specify the affidavits used ; and to enable him to do so, he should, at the time, mark them as filed on the motion. Payne v. Linhill, 10 Cal. 370.

2. Where a notice of motion to disiniss a complaint on specified grounds is given, to obtain a review of the order made on the motion the record must disclose the papers read, or the evidence offered in their support. Freeborn g Goodwin et al. v. Glazer, 10 Cal. 337.

3. An affidavit of one of the attorneys in a cause showing the objections made to the selection of the jury, although copied into the transcript, is no part of the record, and therefore cannot be noticed. Magee v. The Mokelunne Will Company, 5 Cal. 258.

4. Appellants must show in their transcripts the necessary bond to effect the appeal, or else, by the certificate of the Clerk in the Court below, that the undertaking has been filed, and the time of filing the same. Bryan v. Berry, 8 Cal. 130.

5. Parties intending to take advantage of the failure to file the requisite under. taking, must do so before the case is submitted. Cook v. Klink, 8 Cal. 352.

6. Transcripts used on appeal to this Court must show that an undertaking has been filed in due time, and that a notice of the appeal has been duly served upon the other side. Franklin v. Reiner, 8 Cal. 340.


7. Dismissal of appeal, and effect of.-Appeal dismissed because the record contained no copy of the pleadings. Hart v. Plum, 14 Cal. 148.

8. Where an appellant has failed to file a transcript of the record showing that the appeal had been perfected, the Court ordered it dismissed, with ten per cent.

Pacheco v. Bernal, 2 Cal. 150. 9. If there be no statement required, the Appellate Court will not dismiss for want of one. Bryan v. Berry, 8 Cal. 130.

10. An appeal, which had been dismissed for failure to file the transcript in time, was reinstated upon cause shown. Stack v. Barnes, 2 Cal. 162.

11. The cases in which dismissal of an appeal will not operate as a bar to a second appeal, and hence, not as an affirmance of the judgment below, are those where the dismissal has been made upon some technical defect in the notice of appeal, or the undertaking, or the like. The bar operates where the dismissal is for want of prosecution, and the order is not vacated during the term, or the dismissal is on the merits. Karth v. Light, 15 Cal. 324.

12. Where an appeal, regularly taken, is dismissed for want of prosecution, the dismissal operates as an affirmance of the judgment below, and a second appeal cannot be allowed. Id.; Chamberlin v. Reed, 16 Cal. 207.

13. The only mode of avoiding the consequence of such dismissal is to move, during the term, or before the remittitur has gone out, to vacate the order of dismissal and reinstate the cause. Chamberlin v. Reed, 16 Cal. 207.

CHAPTER II.— Appeals to the Supreme Court from the District


Sec. 347. When an appeal may be taken.

348. Appellant shall file undertaking within five days.
349. Undertaking on appeal from a money judgment.
350. Appeal from a judgment for delivery of documents or

personal property.
351. Appeal from a judgment directing the execution of a

conveyance, etc. 352. Undertaking on appeal from a judgment concerning,

real property. 353. Stay of proceedings. The security on appeal may

be limited in case of executor, etc. 354. Undertaking may be in one instrument or several. 355. Justification of sureties on undertaking on appeal. 356. Undertaking in cases not specified above. 357. Appeals may be brought to a hearing on notice. 358. On judgment on appeal, a remittitur shall be certified

to the Clerk of the Court below.

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