Caddy v. Wagner

OPINION OF THE COURT. RAYNOLDS, J. This is a motion to dismiss the appeal upon the ground that the transcript of record is not certified by the clerk of the district court. Subsequent to filing this motion to dismiss, the appellant filed a motion to withdraw the transcript of record temporarily for the purpose of having the same further signed and sealed by the clerk. There are two certificates upon the last page of the transcript of record, the first one being to the effect that— “The foregoing 123 pages of typewritten matter contain a true and correct transcript of the record and proceedings in the above-entitled case’ as called for by the praecipe filed in said cause, all as appearing of record in my office. “In witness whereof, I have hereunto caused my seal to be hereto affixed this 11th day of December, A. D. 1919.” This certificate is not signed, nor is the seal of the court attached. Following this certificate is another one certifying as to the costs in the case, which is signed and the seal of the court attached thereto. It will thus be seen that the transcript of record, is not certified under the seal of the district court, and we have nothing properly before us upon which this court can act. Without a properly certified transcript of record from the court below, this court cannot pass upon the question presented. As said in Moyer v. Preston, 6 Wyo. 308, 44 Pac. 845, 71 Am. St. Rep; 914, at page 925 of 71 Am. St. Rep., at page 326 of 6 Wyo., at page 85 of 44 Pac.: “* * It requires th'e certificate of the clerk of the court, who is the custodian of the records, to properly authenticate it as either the original or a transcript thereof. How is this court to know that any paper is one of the originals filed in the cause in the court below, unless that fact is certified to by the clerk? We may recognize the signature of the judge appended to a bill by reason of the personal familiarity of one or more of the justices composing this court with such signature, but we are not in a position to conclude that the paper, thus seeming to be signed by the proper judge, was ever filed or ever became a part of the record, or is in the condition it was when signed, unless the same is authenticated by the officer whose duty it is to file and preserve the same.” Tbe duty of having a transcript properly prepared and filed rests upon the appellant or plaintiff in error. Baca et al. v. Unknown Heirs, 20 N. M. 1, at page 5, 146 Pac. 945, Ann. Cas. 1918C, 612. This court has held that the certificate of the trial judge to the alleged bill of exceptions must be certified by the clerk, and shown to have been filed in his office. City of Tucumcari v. Belmore, 18 N. M. 331, 137 Pac. 585. It has also held that the transcribed notes of the stenographer, certified by the trial court under the' provisions of section 4493, Code 915, must also be shown to have been filed by the clerk, and by his certificate to that effect made a part of the record, Robinson v. Sawyer, 23 N. M. 688, 170 Pac. 881. In this case the transcript of record was filed December 30, 1919, and the motion to dismiss March 10, 1920, the appellant in the meantime having failed to have his transcript properly certified, and having filed his brief in chief. The appellant, although not conceding that the transcript is not properly certified, moved the court to allow him to withdraw the same temporarily, “for the purpose of having it further signed and sealed by the clerk.” This motion comes too late, as the appellee has taken advantage of the omission by his motion to dismiss. It may be urged that such a rule as the one invoked here is harsh, but, as stated in Walcher v. Stone, 15 Okl. 130, 135, 79 Pac. 771, at page 772: “It is contended on the part of the plaintiff In error that this (the dismissal of the appeal) is a hardship, because it deprives the plaintiff in error of right of appeal, on account of the neglect ,or omission on the part of the clerk of the district court.. This is true only in part, because it is not only the duty of the clerk of the district court to make the correct and legal certificate, but the attorney for the plaintiff in error is charged with the duty of seeing to it, and that all of the steps necessary to present her appeal are properly taken, and all certificates necessary to present a full and complete record to this court are made out and filed in this court, so that this omission of duty is as much the omission of duty on the part of plaintiff in error, or her counsel, as it is of the clerk of the court.” The motion to dismiss is therefore granted; and it is so ordered. ParkeR, C. J., and Roberts, J., concur.