This is a motion to vacate the decision and judgment of this court rendered on appeal in the above cause, and to recall theremittitur.
It appears from the showing made in support of the motion that a duly certified and printed transcript of the record on appeal in the cause was filed in this court on June 1, 1905; that thereafter briefs were filed, and on February 27, 1906, the cause, being regularly set down on the calendar for hearing on that day, was argued orally by the attorneys for the respective parties and submitted in *Page 329 Department One of this court for decision; that during the earthquake and consequent conflagration in the city of San Francisco in April, 1906, the office of the clerk of this court, with its contents, including the certified transcript on appeal in this case, was destroyed; that no order has ever been made by this court restoring such transcript, nor has such record in fact been restored; that on May 21, 1906, a month after such record was destroyed, the justices of Department One of this court, before whom the cause had been argued and submitted on February 27, 1906, signed and filed with the clerk of this court a decision in the cause, affirming the decree of the trial court, and on June 23, 1906, the clerk issued a remittitur in the case.
It is the claim of appellants on this motion that the decision and judgment of this court, having been made against them after the transcript on appeal had been destroyed by fire and without any restoration of it, is void.
We cannot agree with this view. The jurisdiction of this court on appeal is not determined by the presence or absence of a copy of the record from the trial court — the transcript on appeal. It acquires that jurisdiction immediately upon the filing of the notice of appeal in the lower court; acquires it for all purposes, and it is not divested of its jurisdiction, nor is such jurisdiction suspended, either on account of the failure to file a transcript on appeal, or the loss or destruction of it after it is filed. It is true the statute provides for a certification to this court of the record made in the trial court and upon which the appeal to this court is to be heard, but that has nothing to do with conferring jurisdiction upon this court over the appeal. That is acquired as soon as the notice of appeal is filed, and this court may exercise such appellate jurisdiction long before any transcript is filed, and independent of it. It may dismiss the appeal, stay execution in the court below, or stay further proceedings therein, and make all necessary orders in aid of the appeal. The transcript on appeal is but the statutory method of bringing to the attention of the court the particular proceedings and matters which took place in the trial court and which this court is asked to review, and this is the sole purpose and function of the transcript. As supplemental to the statute requiring such certification *Page 330 of the original record of the trial court to this court, our rules require that a certain number of copies, in addition to the original, shall be filed with the clerk of this court. These are vouched for by the appellant in each case as true copies, and, in this particular case, were in the possession of the court when its decision was made. We simply mention this as indicating that, while the original transcript in this case was destroyed, still duplicate copies, which had been filed with the original, were in the possession of the court when the case was under consideration and decided. Independent of this, however, we do not see how the fact of the destruction of the original transcript in any manner affected the jurisdiction of the court to dispose of the appeal. Our jurisdiction was not acquired by the filing of the transcript, and was not suspended by its destruction. That transcript was on file when the cause was argued and submitted for decision. As the only scope and purpose of the transcript is to present to the court the points involved in the appeal, it had served its purpose with the submission of the cause. In the subsequent preparation of its opinion the court could rely upon its memory of the points involved as presented in the original transcript, or refer to any copy of such transcript on file under the rules. As the filing of the transcript was not necessary to confer jurisdiction upon this court, neither was its continued existence necessary in order to authorize this court to render its decision on submission of the cause.
The motion is denied.
Shaw, J., Henshaw, J., Beatty, C.J., Sloss, J., and Angellotti, J., concurred.
Rehearing denied. *Page 331