Somers

This is an appeal from an order made after judgment allowing the appellant an attorney fee for services to be rendered in defense of a motion for a new trial and an appeal to this court. The respondent moves to dismiss the appeal on the ground that there is no bill of exceptions, and that none of the proceedings and papers used on the hearing are properly authenticated. There is a certificate of the judge of the court below, which will be noticed hereafter, that certain papers named were used on the hearing.

In the case of Herrlich v. McDonald, 80 Cal. 472 , it was said: “It is also a matter of serious question whether any of the papers claimed to have been used on the *609 alleged motion are properly authenticated. As we have said, there is no bill of exceptions. The only authentication is by the certificate of the judge of the court below, at the close of the transcript.....Formerly it was expressly provided that on motion for a new trial affidavits used might be identified by indorsement by the judge or clerk at the time as having been read or referred to on the hearing. (Stats. 1861, p. 599; Hayne on New Trial and Appeal, 790.) The present code has no such provision. It is…

I concur in the judgment on the last ground mentioned by Justice Works, viz., that the affidavits are not shown to be the ones which were used on the hearing. The question how such papers shall be authenticated I take to be one of very little importance. It is better that a rule of practice— mere practice — be steadily adhered to, even if it has arisen out of an erroneous construction of some provision of the code. Nothing disturbs and annoys practitioners more than judicial vacilation from one rule of practice to a different one on the same matter.

Furthermore, it would be manifestly unfair to now change the rule and dismiss appeals, — and the right of appeal is property of a high order sometimes,—which have been perfected upon a rule sanctioned by this court.

A rule ought to be adopted for future cases as suggested.

McFarland, J., concurred.

If the question involved in this motion .were a new one, I should feel little hesitation in concurring in the opinion of Mr. Justice Works; but since the appellant has pursued the practice approved in Pieper v. Centinela Co., 56 Cal. 173 , in bringing up certified copies of the papers used at the hearing in the superior court, I do not think we are justified in reversing our former ruling and dismissing his appeal.

I think, however, it would be well to make a rule to operate prospectively in accordance with the views of Justice Works.

I dissent. The practice pointed out in Pieper v. Centinela Co., 56 Cal. 173 , is correct and in accordance with the statute. It has been frequently approved, notably in People v. Jordan, 65 Cal. *615 648 , where six judges concurred and no one filed a dissent. It settled the practice, and has remained undisturbed until this case, and unchallenged until the dictum in Herrlich v. McDonald, 80 Cal. 472 , appeared. This court has also said that it would accept a bill of exceptions under the like circumstances, and has accepted and acted on it. I see no ground for disturbing the settled practice, and am not willing to do so, whether laid down by a broadminded or a narrow-minded court. It would be unjust to litigants to change it now. The certificate of Judge Maguire that Mitchell’s affidavit was used on the hearing of the motion is sufficient, and the appeal should not be dismissed. The appellant is entitled to a hearing on his appeal. As to the objection that the judge’s certificate does not show that the affidavit of Mitchell appearing in the record is a true copy, it need only be said that this is not the duty imposed on the judge. There was but one affidavit of Mitchell, and this…