Statutes are found in several states allowing trials upon agreed cases, dispensing with pleadings. Under such a statute, it was held that a statement of facts made by all parties interested, in the superior court, with a stipulation waiving formal pleadings, constituted a record upon which the court, on appeal, would consider the cause.13

In North Dakota, the preparation of statements of the case, and abstracts thereof, is regulated by statute and rules of court, and these cannot be superseded by the combined action of couns sel and the trial court from which the record is transmitted.14

§ 637. Authentication by the clerk.

The code provides that "The copies provided for in the last three sections must be certified to be correct by the clerk or the attorneys, and must be accompanied with a certificate of the clerk or attorneys that an undertaking on appeal, in due form,

the one filed herein is not sufficient to enable the court to determine the appeal upon its merits, and for these reasons move to dismiss it. Whether the notice of appeal is to be considered in the nature of process, upon the service of which this court obtains jurisdiction, and the transcript as the evidence by which the judg ment is to be reviewed on appeal, so that the parties might stipulate the facts involved and ask a construction of the law arising thereon, or whether the filing of the transcript is to be deemed the final act, without which no jurisdiction can be obtained, we do not feel called upon to decide, for the plaintiff, having stipulated with the defendant that the printed abstract should be deemed sufficient for the trial of the cause on appeal, is not in a position to controvert the legal effect of this agreement upon the faith of which the defendant presumptively relied. An examination of the abstract leads us to the conclusion that it fairly presents the question involved, and hence the motion to dismiss the appeal is overruled." 13 Yakima Water etc. Co. v. Hathaway, 18 Wash. 377, 51 Pac. 471.

14 McTavish v. Great Northern Ry. Co., 8 N. Dak. 333, 79 N. W. 443; Security Imp. Co. v. Cass. Co., 9 N. Dak. 553, 84 N. W. 477. To same effect, Shadville v. Barker, 26 Mont. 45, 66 Pac. 496, 761. Where no statement of the case was ever settled but the trial judge transmitted to the supreme court certain papers cerifying that they constituted all the evidence and proceedings had at the trial upon which the findings were made. Held, not a compliance with the statute and stricken out: Brynjolfson v. Thingvalla, 8 N. Dak. 106, 77 N. W. 284.

has been properly filed, or a stipulation of the parties waiving an undertaking." 15 The section says nothing as to a certifica tion by the clerk where a deposit is made in lieu of an undertaking. But it was held, under statutes similar to those of California, that a certificate of the clerk of the superior court, that a certain sum was deposited with him by an appellant in lieu of his appeal bond was conclusive evidence of that fact.16 The rule of court last noticed prescribes the method by which the right of certification by stipulation, conferred by the stat ute, may be exercised; but there is not, in any rule, nor in the code is there any specification, as to the form of authentication by the clerk.

The transcript must be authenticated in one method or the other, prior to submission; else the appeal will be dismissed.17

The clerk's certificate should be limited to a statement that the transcript contains correct copies of the originals, on file in his office.18 Whether they are all that are necessary to constitute the complete record on appeal is not for him to deter mine; and a statement to that effect will be ignored, as not being within his province. Nor is any purpose accomplished by a statement in the clerk's certificate that certain papers constitute, in whole or in part, the judgment-roll.19 Nor has the

15 Cal. Code Civ. Proc., § 953. Form of certificate used in Simmons Hardware Co. v. Alturas Commercial Co., 4 Idaho, 386, 39 Pac. 53, held sufficient compliance with Revised Statutes of Idaho, section 4821. See Taylor v. McCormick (Idaho), 64 Pac. 239, holding that when the clerk's certificate to the transcript shows that he certified a transcript composed of forty-one pages of typewritten matter, and the transcript to which such certificate is attached is composed of fifty-six pages of printed matter, the certificate is not sufficient. As to certifying to evidence in equity cases in Oregon, see Tallmadge v. Hooper, 37 Or. 503, 61 Pac. 349; rehearing denied: 37 Or. 503, 61 Pac. 1127.

16 In re Sullivan's Estate, 25 Wash. 430, 65 Pac. 793. It would no doubt be prima facie sufficient in California, but within the reasoning in Duncan v. Times Mirror Pub. Co., 109 Cal. 602, 42 Pac. 147, it would not be conclusive.

17 As to which, see post, §§ 650, 665.

18 See State v. Millis, 19 Mont. 444, 48 Pac. 773.

19 O'Shea v. Wilkinson, 95 Cal. 454, 30 Pac. 588. In this case the court said: "The transcript contains what purports to be

lower court any more power to decide or order what papers shall constitute the record on appeal than the clerk.20

The power of the supreme court over the clerk of the lower court, for the purposes of appellate jurisdiction, is fully considered under a more appropriate head.21

In the certificate is the proper place for the insertion of a recital that "an undertaking on appeal in due form," or a stipulation of the parties waiving it, has been properly filed.22

The stipulation waiving the undertaking should, of course, be filed with the clerk of the lower court.

The clerk is not concerned as to the sufficiency of the sureties, except where called upon to officiate in the proceeding to justify them. Where the undertaking is "in due form," and has been "properly filed"—that is, filed in proper time—it is

copies of the pleadings, order overruling the demurrer, minutes of the court, findings, and judgment, with a certificate of the clerk attached, which states that they are correct, but does not say that they constitute the judgment-roll. Respondent claims that we cannot consider matters contained in these papers without a certificate of the clerk that they are copies of the records which constitute the judgment-roll. This contention cannot be sustained. The code specifies what documents shall constitute the judgment-roll. Except in cases of default, it is made up by attaching together 'the pleadings, a copy of the verdict of the jury or finding of the court or referee, all bills of exceptions taken and filed, and a copy of any order made on demurrer, or relating to change of parties, and a copy of the Judginent': Code Civ. Proc., § 670. It is no part of the duties of the clerk to certify that the papers contained in the transcript constitute the record on appeal although it is the general practice, and is proper for the clerk in his certificate to state that the transcript contains a copy of the judgment-roll. In the absence of a showing to the contrary, we must presume that the pleadings, order, findings, and judgment mentioned in the certificate are those which constitute the judgment-roll. If they do not, it is an easy matter for the respondent, upon suggestion of diminution of the record, to have the transcript corrected here."

20 People v. Center, 54 Cal. 236, as to proper function of the clerk herein, and absence of power of lower court to direct herein; Buckman v. Whitney, 28 Cal. 555, to same effect.

21 See chapter 42.

22 Cal. Code Civ. Proc., § 953.

his duty to so certify.23 In Winder v. Hendrick, the clerk certified that "an undertaking on appeal was properly filed." but made no mention of the form. There being no attempt to have a copy of the undertaking certified, to show its form, the supreme court dismissed the appeal, and indicated the proper practice, thus: "The certificate contains no statement or recital that an undertaking on appeal 'in due form' has been properly filed. That the expression 'properly filed' is not the equivalent of, and was not intended to include, 'in due form,' is apparent from the wording of the section itself, which requires the clerk to certify to two distinct and separate facts, to wit, that the undertaking is in due form, and that it has been properly filed. It needs no argument to establish that a paper-writing in form not regular may be 'properly filed,' or that one in due form may (reference being had to the time of filing, or the officer with whom filed, or other circumstances), be improperly filed. In People v. Center (No. 6979), we held that, with respect to all matters connected with our appellate jurisdiction, this court must treat the clerks of the superior courts as under our direction and control. If, therefore, the undertaking on ap

23 See Murphy v. Northern Pac. Ry. Co., 22 Mont. 577, 57 Pac. 278, holding that under Code of Civil Procedure, section 1739, requiring the certificate of the clerk to state that an undertaking on appeal in due form has been properly filed," a certificate "that a good and sufficient undertaking on appeal approved by me has been filed in my office" is fatally defective. In the first case cited the court said: "In the certificate to the transcript the clerk states 'that a good and sufficient undertaking on appeal, approved by me, in the sum of three hundred (300) dollars has been filed in my office.' The defendant now moves this court to dismiss the appeals so taken or attempted to be perfected. The record before us does not present for review any order or judgment without a certificate of the clerk or of the attorneys 'that an undertaking on appeal, in due form, has been properly filed, or the stipulation of the parties waiving an undertaking,' the appeal ought to be dismissed on motion: Code Civ. Proc., § 1739; San Francisco etc. Pacific R. R. Co. v. Anderson, 77 Cal. 297, 19 Pac. 517; State ex rel. Pierson v. Millis, 19 Mont. 444, 48 Pac. 773. Here there is neither a certifi cate of the attorneys nor a stipulation waiving undertaking, and the clerk's certificate, not conforming to the statute in the respect mentioned, is fatally defective."

24 54 Cal. 275, 277. See, also, Watson v. Cornell, 52 Cal. 644

peal was, in the opinion of appellant, in due form, he could have moved this court that the clerk below be directed to make the certificate accord with the fact. If, upon such direction, the clerk entertained doubt as to the form of the undertaking, it would have been a sufficient compliance on his part with our order to certify up a transcript of the undertaking—such as it

If in doubt as to the sufficiency in the form of the undertaking, the clerk should insert a copy of it in the transcript, and certify to its correctness as a copy. It is here assumed that this would be permissible. The above proposition can hardly he said to conflict with San Francisco etc. R. R. Co. v. Anderson,25 where there was no reference whatever in the certificate to the undertaking. Such certificate as above suggested would certainly be better than the one used in that case. The sufficiency of adopting the above suggestion was indicated in a dictum in a recent case. 26 And it must equally appear that it was "properly" filed, that is, filed within proper time.27 It was held in Duncan v. Times-Mirror Co.,2 28 that neither is the certificate of the clerk nor the certificate of counsel which merely takes its place as to the form and filing of the undertaking conclusive, as against an objection that none was filed. In that case, a certificate by the county clerk in the usual form was relied on by the appellant as conclusive, it be ing insisted that, if it were false, the respondent had his remedy upon the official bond of the clerk. But the court said: "This proposition has been frequently suggested here on the consideration of similar motions, and, although it has not been discussed in any reported decision, the court has constantly and frequently permitted parties to go behind this certificate. It could not have been intended that the judgment of the clerk should be final in this matter. That we are not bound

..

25 77 Cal. 297, 19 Pac. 517. See Wakeman v. Coleman, 28 Cal. 58; Bennett v. Bennett, 42 Cal. 629; Swasey v. Adair, 83 Cal. 136, 23 Pac. 284, where the remedy for a certificate defective in this respect is pointed out; Menard v. Montana Cent. Ry. Co., 22 Mont 340, 56 Pac. 592.

26 Pacific Mut. L. Ins. Co. v. Edgar, 132 Cal. 197, 64 Pac. 260. 27 Pacific Mut. L. Ins. Co. v. Edgar, 132 Cal. 197, 64 Pac. 260. 28 109 Cal. 602, 606, 42 Pac. 147.