Tingley v. Otis

VAN DYKE, J.— This is an appeal hy plaintiff from an order granting the defendants’ motion for a change of the place of trial from the county of San Diego to the county of Los Angeles.

Defendants moved to dismiss said appeal on the ground that the appellant had not served or filed printed points and authorities within thirty days after the filing of the transcript, as required by the rules of this court. That motion was argued and 'submitted July 6, 1903. Thereafter, October 19, 1903, at the Los Angeles term of court, respondents, pursuant to notice given, moved to strike from the printed transcript that portion purporting to be a bill of exceptions settled by the lower court, on the ground that the bill of exceptions was presented and settled without notice, and that since the filing of the transcript said superior court had canceled the certificate of allowance, and stricken the bill of *72 exceptions from the files of the lower court, which motion was by this court, on October 20th, granted.

The bill of exceptions having been stricken from the transcript, nothing remains before this court except the notice of appeal and the certificate of the clerk of the court below that an undertaking on said appeal in due form had been filed. Without considering the motion to dismiss, based upon the technical ground of failure on the part of the appellant to serve printed points and authorities, it would be the duty of the court of its own motion, in the present condition of the record, to dismiss the appeal; and it is so ordered.

Shaw, J., Angellotti, J., Lorigan, J., McFarland, J., and Beatty, C. J., concurred.