
    [No. 7,214.
    Department One.]
    A. S. BAKER v. A. J. SNYDER.
    ppeal from Order—Identification of the Papers Used on the Hearing—Certificate of Clerk—Transcript—Practice.—Upon an appeal from an order,
    
      Held, That unless the affidavits, etc., when used on a motion are then indorsed or marked by the clerk, his certificate to the identity of such papers can not be held to be determinative of the fact as against his subsequent statement that he signed the certificate by mistake, and that he did not know, and had no means of knowing, whether the affidavits were or were not used at the hearing of the motion.
    Appeal from an order in the Superior Court, Alameda County. Crane, J.
    A judgment was entered against the plaintiff dismissing the action for want of prosecution. The plaintiff made a motion to vacate the judgment, and the motion being denied, the plaintiff appealed. The transcript contains certain affidavits indorsed, filed in the action, the contents of which tend to show that the judgment was rendered by reason of an excusable mistake on the part of the plaintiff.
    
      W. H. H. Hart and W. H. Fifield, for Appellant.
    
      James C. Martin, for Respondent.
   The Court :

Section 951 of the Code of Civil Procedure reads: “On “appeal from a judgment rendered on an appeal,- or from an order, except an order granting or refusing a new trial, the appellant must furnish the Court with a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing in the Court below.”

But the code provides no special mode by which “the papers used on the hearing” shall be identified.

Unless the affidavits, etc., when used on a motion, are then indorsed or marked by the clerk, under the direction of the Judge, or without such direction, the clerk can not be expected to remember, when called upon to certify to copies to be sent up here, the exact papers used at the hearing of a motion. If the law imposed the duty upon him of certifying to the identity of such papers, his certificate would be conclusive evidence of the fact in it recited. But as the law does not impose that duty upon him, his certificate that certain papers were used on the hearing, inadvertently made, can not be held to be determinative of the fact, as against his subsequent statement that he signed the certificate by mistake, and that he did not know, and had no means of knowing, whether the affidavits were or were not used at the hearing of the motion.

As the affidavits found in the transcript are not identified as having been used on the hearing of the motion to set aside the judgment of dismissal,

The order appealed from is affirmed.  