No appeal has been taken in this case. ( C. C. P. § 940. Reed v. Kimball , 52 Cal. 325; Hastings v. Halleck , 10 id. 31; Estell v. Chapman , 15 id. 283.)
JUDGES: McKinstry, J. Ross, Sharpstein, Myrick, Thornton, and McKee, JJ., concurred.
OPINION
McKINSTRY, Judge
In Bank. The Court:
In denying a rehearing in this cause, we think it proper to say that the transcript shows that the notice of appeal was served on the eighteenth of December, 1879, and filed on the thirtieth of January, 1880. An attempt is made to show by affidavit before this Court, that it was filed at an earlier day, and within the time allowed by law. This cannot be allowed. It was so held in Boston v. Haynes , 31 Cal. 107. The record of the Court below cannot be altered or amended by proof made in this Court. If it is incorrect, that must be made to appear by proper evidence to the Court below, which has power to alter it so as to make it speak the truth. It would be a departure from all principle to allow a record sent to this Court to be assailed by evidence of less dignity than a record. (See Smith v. Brannan , 13 Cal. 107; Bonds v. Hickman , 29 id. 460; Satterlee v. Bliss , 36 id. 521.) The party must seek relief in the Court from which his appeal was prosecuted.
Hearing denied.