Opinion
Department Two
Hearing In Bank Denied.
Motion to dismiss an appeal from an order of the Superior Court of the city and county of San Francisco directing the payment of counsel fees.
COUNSEL
E. D. Wheeler, and Barclay Henley, for Appellant.
Henry E. Highton, Henry C. McPike, and J. A. Cooper, for Respondent.
JUDGES: De Haven, J. McFarland, J., and Sharpstein, J., concurred.
OPINION
DE HAVEN, Judge
This is an appeal from an order made after final judgment directing the appellant to pay to the respondent the sum of seven thousand five hundred dollars for the purpose of paying certain of her attorneys for professional services rendered to her in the action.
The respondent moves to dismiss this appeal, upon the ground, among others stated, "The order appealed from was made after final judgment, and no bill of exceptions to the making of said order was ever served, settled, allowed, or filed."
The transcript on appeal herein purports to show that certain affidavits and testimony of witnesses were used upon the hearing of the motion, which resulted in the order appealed from, but there is no bill of exceptions in the record. In the case of Somers v. Somers , 81 Cal. 608, the members of this court were divided as to the proper practice to be pursued in authenticating the record on appeal from this class of orders, but since then the court has adopted rule 32, which we think should be deemed as settling the practice, so far as relates to appeals taken since it went into effect; and this appeal having been taken since that date, the rule is decisive of the question arising on this motion. The rule is as follows: "In all cases of appeal to this court from orders of inferior courts, the papers and evidence used or taken on the hearing of the motion must be authenticated by incorporating the same in a bill of exceptions, except where another mode of authorization is provided by law."
Appellant suggests a diminution of the record so as to have the transcript herein properly certified by the clerk of the court below; but it is manifest that such certificate could not supply the place of a bill of exceptions, which is required by the rule just quoted.
Appeal dismissed; remittitur stayed for thirty days.