JOHN THOMPSON v. ARTHUR THORNTON and ISAAC STANLEY

[No. 2,871.] JOHN THOMPSON v. ARTHUR THORNTON and ISAAC STANLEY. Defective Certificate of Clerk.—A Clerk’s certificate, filed in support ' of a motion to dismiss an appeal under Buie Pour of the Supreme Court, is defective, if it fail to state the fact, or the date of the service of the notice of appeal ,Nor the character of the evidence of service. Certificate to Show Statement was Settled.—Where a statement on appeal has properly keen filed, the Clerk’s certificate must show that the statement was settled. Query:—Whether a statement on an appeal from an order granting or refusing a new trial would in any case he necessary or proper. Appeal from the District Court of the Fifth Judicial District, County of San Joaquin. ' The plaintiff had judgment and the defendant appealed. George W. Tyler, for Appellant. Terry & Carr, for Respondents, moved to dismiss the appeal upon a Clerk’s certificate. [The certificate is not on file.—Reporter] [MAJORITY — Rhodes, J.:] By the Court, Rhodes, J.: Motion to' dismiss the appeal, upon a Clerk’s certificate, under Rule Four. The certificate is defective because it does not state either the fact or the date of the service of the notice of appeal, nor the character of the evidence of service. It is certified that a statement on appeal was filed, that amendments were filed, but that the statement has not been settled. It is certified that the appeal is taken from an order granting a new trial. Whether a statement on an appeal from an order granting or refusing a new trial would in any case be necessary or proper, it is unnecessary at this time to decide; but it has repeatedly been announced by this Court, that in cases where a statement on appeal had properly been filed, the certificate must show that the statement had been settled, otherwise the certificate would not comply with Rule Four, and the resjiondent would not be entitled to have the appeal dismissed on his ex parte motion. Motion denied.