Simmons Hardware Co. v. Alturas Commercial Co.
| Decision Date | 04 March 1895 |
| Parties | SIMMONS HARDWARE COMPANY AND STANDARD OIL COMPANY v. ALTURAS COMMERCIAL COMPANY |
| Court | Idaho Supreme Court |
PRACTICE-CERTIFICATION OF PAPERS ON APPEAL.-The clerk of the court from which an appeal is taken is the only officer that can certify to the papers provided for in section 4819.
SECTION 4821 OF THE REVISED STATUTES CONSTRUED.-The clerk of the district court of the attorneys of record are authorized to certify that a transcript on appeal contains correct copies of all papers used on the hearing of a motion in the court below.
APPEAL from District Court, Alturas County.
Motion denied.
F. E Ensign, for Appellant.
The clerk of the court is expressly authorized by statute to authenticate transcripts on appeal. (Idaho Rev. Stats., sec 4821.) The rule of this court follows the statute. (Supreme Court Rule 27, p. 11.) It is true that both statute and rules provide that the authentication may be by stipulation of counsel of the respective parties, but neither the statute nor the rule compel or require counsel to stipulate. The law makes it the duty of the clerk to authenticate transcripts on appeal, and he is the only officer or person upon whom that duty is imposed. Counsel of the respective parties may, if they choose, stipulate, but they are under no restraint and may do as they please. The California authorities cited by respondents are liable to mislead, as they are based on statutes widely different from our own. We think, in the light of the statutes and authorities cited, we are authorized to say that the law in Idaho is: 1. That the judge or court cannot authenticate the transcripts used on appeal from an order; 2. That such authentication can be made by stipulation of counsel, but that counsel are under no obligation to enter into such stipulation; 3. That the only officer or person upon whom the law imposes the duty of authenticating such transcripts is the clerk of the court.
Selden B. Kingsbury and Johnson & Johnson, for Respondents.
The clerk of the court is not authorized to authenticate the papers used upon a motion. When the motion is made presented, argued, and determined in open court, the clerk can hardly know upon what papers the parties rely; most frequently all the papers are not read, but ultimate facts are stated to appear, but from what papers they are claimed to appear the court and the respective attorneys only know. When the papers used are authenticated as those used, the clerk is the proper officer to certify that the copies in the transcript are correct copies of the originals on file in his office, and this is the extent of his authority; but this he does not do in these cases, he does not certify that the transcripts contain copies of papers on file or of which he is the legal custodian, but that they contain copies of papers used on the motions. An appellate tribunal cannot take judicial knowledge of proceedings in lower courts. It can only act upon a record of the proceedings authenticated in the mode required by law." (Nash v. Harris, 57 Cal. 242.) The law does not impose upon the clerk the duty of certifying to the identity of papers used upon a motion. (Baker v. Snyder, 58 Cal. 617.) By Revised Statutes, section 4819, the record on appeal from all orders, except an order granting or refusing a new trial, is made the same, and it matters not whether the order was made before or after judgment; and section 4429 provides for a bill of exceptions to any decision whenever or wherever made, by a court or judge, or by a tribunal other than a court, or by a judicial officer. It was the settled construction of sections 4819 and 4821 that the clerk cannot certify as to what papers were used upon the hearing of the motion in the court below or at chambers, before we adopted those sections from California. (Walsh v. Hutchings, 60 Cal. 228; 2 Hayne on New Trial and Appeal, sec. 264, pp. 792, 793.)
Action by the Simmons Hardware Company and another against the Alturas Commercial Company. From an order denying a motion to dissolve attachments, defendant appealed, and plaintiffs move to affirm the order for defects in the appeal record. Motion denied.
In these cases plaintiffs issued attachments and levied upon the property of defendant on the twenty-second day of October, 1894. On the first day of November, 1894, defendant moved the court to dissolve said attachments, stating that the motion would be heard upon the papers on file in said court in said action. The court below, upon the hearing, denied the motion, and defendant appeals to this court. The clerk of the district court of the fourth judicial district, in which these cases were pending, in his certificate to the transcripts, certifies that the foregoing transcripts contain a full, true, and correct copy of all the papers used on the motions of defendant to vacate and discharge the attachments, and the motions of plaintiff to be allowed to file additional undertaking, etc. The respondent now moves this court to affirm the judgment of the court below on the grounds that there is no bill of exceptions or other sufficient certificate in the record to show that the papers presented in the transcripts were used on said motion; or that the transcripts contain all the papers used upon said motions.
--The district court is required by law to keep a complete record of all matters and proceedings had and done in said court. This record is kept by the clerk under the direction of the judge. It is also necessary that a record of all matters done at chambers should be kept. It is the practice of the district court judges to direct the clerk to keep this record also. Necessarily, then, the clerk has as good a knowledge of the proceedings at chambers as he has of court proceedings. It would be the duty of the clerk, under the direction of the judge, to in some manner identify the papers, or in some way mark the papers used on the hearing in the court below, in order that he may be able to correctly state in his certificate what papers were so used. Section 4819 of the Revised Statutes requires the appellant to furnish the supreme court with a...
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