Lapique v. Kelly

CONREY, P. J. On motion of appellant, suggesting diminution of the record, and applying for an order directing that certain documents be supplied from the record and thereby be made part of the transcript on appeal. The documents called for are, first, the summons issued October 9, 1922, “the return of the sheriff: of Kansas City, Missouri,” the affidavit for publication of summons, and the order for publication of summons. As to these documents, assuming their genuineness and regularity, and that they have any relation to the judgment from which the appeal has been taken, they are such documents as would be included in the judgment-roll, and may be certified by the clerk alone. Therefore, without at this timé considering in any way the legal effect of said documents, the motion to have them certified and filed herein as part of the clerk’s transcript is granted. Appellant also, on notice, accompanied by his affidavit claiming that the clerk of the superior court refuses to certify to said documents, moves for an order requiring the clerk to show cause why he should not be ordered to make the demanded certificates. The clerk, by counsel, assures the court that he is ready and willing to certify to said documents, now on file in his office. For that reason, and also because such order to the clerk, if appropriate to be made, should be made on application to the superior court, the motion for an order to show cause is denied. (People v. Bartlett, 40 Cal. 142, 148.) The second group of documents called for, as described in the motion, consists of “a certain so-called lease” (purporting to have been executed May 28, 1923), and a motion of plaintiff “to vacate and set aside said so-called lease,” denied by the superior court on April 4, 1924. Manifestly, these cannot be a part of the record on appeal, *533 since the appeal itself was taken on the fourteenth day of June, 1923, from a judgment entered on the twelfth day of March, 1923. Moreover, said documents could not be included in the transcript unless first certified by the judge of the court in which the case was tried. As to said so-called lease and said order of April 4, 1924, the motion is denied Houser, J., and Curtis, J., concurred. A petition for a rehearing of this cause was denied by the district court of appeal on June 26, 1924.