Summary
In Walsh v. Hutchins, 60 Cal. 228, papers appeared in the transcript as printed, purporting to be an affidavit of defendant, and a counter-affidavit of the plaintiff; but not embodied in a bill of exceptions, and not certified or identified by the judge who heard the motion as having been used on such motion; and although certified by the clerk as true and correct copies of the papers used on the hearing of the motion, this court held that "it is not for the clerk to determine what papers or evidence the court acted upon," and discarded the affidavits.
Summary of this case from Fish v. BensonOpinion
Appeal from an order of the Thirteenth District Court of the County of Merced.
COUNSEL
J. K. Law, for Appellant.
R. H. Ward and P. D. Wigginton, for Respondent.
JUDGES: Myrick, J. McKee, Sharpstein, and Thornton, JJ., concurred. McKinstry, J., concurred in the judgment. Morrison, C. J., also concurred in the judgment.
OPINION
MYRICK, Judge
In Bank. This is an appeal from an order setting aside a default judgment entered against the defendant. The action was commenced in the District Court in and for the county of Merced, and the summons was served on the defendant in the city and county of San Francisco, October 11, 1879. The default and judgment were entered by the Clerk November 26, 1879. The defendant moved to vacate the judgment and set aside the default, and for leave to answer, which motion was granted by the Court. Papers appear in the transcript as printed purporting to be an affidavit of the defendant, and a counter affidavit of the plaintiff; but there is no bill of exceptions, and the Judge of the Court below does not certify or identify these papers as having been used on the motion. It is true, the Clerk of the Court below certifies that the transcript " contains full, true and correct copies of all papers used on the hearing in said District Court on the motion of said defendant Hutchings to set aside said default and judgment; " but it is not for the Clerk to determine what papers or evidence the Court acted upon. Disregarding these papers, it does not appear that the Court was not justified under Section 473, C. C. P., in making the order.
Order affirmed.