Motion of respondents to dismiss an appeal from an order distributing the estate of the decedent. The ground of the motion is, that the notice of appeal was filed and served before the entry of the order, and was therefore premature. The notice of appeal is dated June 6, 1901, and it was given on the theory that the order appealed from was entered May 20, 1901, the day on which it was signed and filed. Respondents contend that it was not entered until June 14, 1901, which was of course a few days subsequent to the notice of appeal.
The transcript on appeal contains a bill of exceptions setting forth quite fully the proceedings had on the petition for distribution, and, among other things, it is stated therein positively that "afterwards, to-wit, on the twentieth day of May, one thousand nine hundred and one, the court made, entered, and filed an order distributing and assigning the residue of the estate of the said Henry Pichoir, which order was in words and figures following." The judge of the court below being absent from the state at the time, respondents and appellants stipulated in writing that "the bill of exceptions shall be deemed and taken for all purposes to be settled, allowed, and approved as of this date, with like force and effect as if settled, approved, and certified by said judge." Counsel for respondents also, on July 22, 1901, signed the following stipulation to the transcript: "It is hereby expressly stipulated and agreed that the foregoing printed pages contain full, true, and correct copies of the bill of exceptions; the order distributing and assigning the residue of the estate, the order appealed from; the notice of appeal; and of all papers used on the hearing in the court below; that the same constitute a full, true, and correct transcript on appeal in this case; that the said transcript shall be and constitute the record on appeal to the supreme court of the state of California from the said order, and that all proceedings were duly taken andall notices were given in due time, and a good and sufficient undertaking on appeal was *Page 701 given as required by law." The transcript was filed here on August 5, 1901, and it constitutes the record in this court.
A former motion to dismiss the appeal was made on the same ground as that upon which the present motion is based, and on the former motion respondents offered a certificate of the clerk of the court below, and an affidavit of one of his deputies, to the effect that the order appealed from was not entered before June 14, 1901. Appellant objected to such evidence as not admissible to contradict the transcript, and the objection was sustained, and the motion denied "without prejudice." Afterwards respondents moved the court below to amend the bill of exceptions so as to make the same show that the order appealed from was not entered at length until June 14, 1901; but the court refused to make the amendment.
The point relied on by respondents seems to have been definitely decided against their contention by the decision of this court in Harnish v. Bramer, 71 Cal. 155, — the point there decided being the identical one involved here. In that case the court say: "Objection is made by respondents that the judgment was not entered in the cause until after this appeal was taken, and a certificate of the clerk of the superior court in support of the position filed, showing that judgment was entered `on October 5, 1885, or within a few days after said date,' etc. The record before us shows on its face that the judgment was entered September 7, 1885, and counsel for respondents, having stipulated that the transcript is correct, cannot be heard to impeach it by showing the entry of judgment at another and later date." Counsel for respondents contend, however, notwithstanding that decision, that the question whether or not an appeal was taken within the proper time goes to the jurisdiction of this court, and cannot be evaded by a stipulation of the parties. No doubt, jurisdiction cannot be given this court by the waiver of a party of the absence of a fact necessary to jurisdiction; but in the case at bar the question is as to the fact itself, and the proper evidence of it — and not as to its waiver. The code does not seem to provide anywhere for an authentic record of the date of the entry of the judgment or order appealed from; and, therefore, it seems entirely proper for such date, when material, to be made part of the record by *Page 702 a bill of exceptions. If, however, it could be held that, notwithstanding the statement in the transcript, solemnly stipulated to be true by the parties as to the date of the order, other evidence can be considered for the purpose of disproving the record on that point, still no such other evidence sufficient for that purpose has been presented. The evidence relied on is a memorandum on the margin of the page of the minute-book where the entry of the order appealed from commences, made by a copyist in the employ of the clerk who testified that he had no recollection of the matter, but that it was his custom to make such a memorandum when he commenced to make such an entry. This marginal memorandum is as follows: "Recorded June 14, 1901." There is no statutory provision to which our attention has been called providing for such a marginal memorandum, or making it, in any way, a judicial record. There are provisions that certain probate orders shall be "recorded" in the office of the county recorder; but there are none about a copyist of a county clerk, or the clerk himself, noting on the margin of the minute-book where a probate order is "entered" that it was commenced to be "recorded" at a named date. This memorandum, therefore, affords no evidence to disprove the transcript on appeal on the subject, — even on the theory, contrary to Harnish v. Bramer, 71 Cal. 155, that the transcript is not conclusive. This view makes it unnecessary to consider the evidence introduced by appellant of an entry by the clerk of the court below in the register of actions that the order appealed from had been entered on May 20, 1901.
We think that the statement in the transcript, that on May 20, 1901, the court "made, entered, and filed" the order in question, means that it was entered in the manner provided by law; it must have been so understood by this court when the former motion to dismiss was denied.
Under the above views we need not consider appellant's contention that respondents should be held to be estopped by their conduct from seeking to dismiss the appeal after the time for taking another appeal had passed.
*Page 703The motion to dismiss the appeal is denied.