Opinion
Appeal from the District Court, Seventh Judicial District, Solano County.
On the 24th day of May, 1862, Buckman, the plaintiff, recovered judgment against Whitney and Wood, the defendants, in the District Court of the Seventh Judicial District, Solano County, for the sum of two thousand five hundred dollars damages and costs of suit. On the 20th day of August, 1862, an application for a new trial was denied, and on the 9th day of September thereafter, an appeal was taken to the Supreme Court.
On the 2d of February, 1864, the respondent moved that the appeal be dismissed.
COUNSEL:
Howell & Hopkins, and Shafter & Heydenfeldt, for Respondent.
B. C. Whitman and Wm. C. Wallace, for Appellants.
JUDGES: Rhodes, J. Mr. Justice Shafter having been of counsel, did not sit on the trial of this case.
OPINION
RHODES, Judge
The respondent moves to dismiss the appeal in this case on the ground that the transcript has not been filed in this Court. Affidavits are presented upon both sides, from which it appears that the transcript has not been made out by the Clerk of the Court below, because of the loss from the files of said Court of the judgment roll in said cause; but it does not clearly appear which party, if either of them, is accountable for the loss. This Court has no control over the records of the Court below, and cannot properly make any order to supply a lost record; but that duty is within the province of the District Court, and the taking of the appeal does not suspend or impair the power of that Court over its own records, or its capacity to supply their place when lost.
Upon proper application being made, it will be the duty of the Court below to supply the lost judgment roll by the aid of the copies, or by some other means under its control.
It is therefore ordered that the appellants have thirty days from and after the next term of the District Court of the Seventh Judicial District, for the County of Solano, in which to prepare and file in this Court the transcript on appeal in this cause, and that in the meantime all proceedings on the said motion in this Court be stayed.