LYNCH v. DURFEY, 108 F.2d 181

MATHEWS, Circuit Judge. Helen Durfey has moved this court to docket and dismiss two appeals which she says were taken by Henry L. Lynch in suits wherein he was plaintiff and she was defendant in the District Court of the United States for the Southern District of California. Rule 75 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following

section 723c, provides for the settlement and certification 'of records on appeal and. for the transmission thereof to the appellate court. Subdivision (

j) of Rule 75 provides: “If, prior to the time the complete record on appeal is settled and certified as herein provided, a party desires to docket the appeal in order to make in the appellate court a motion for dismissal * * * the clerk of the district court at his request shall certify and transmit to the appellate court a copy of such portion of the record or proceedings below as is needed for that purpose.” This rule has not been complied with in these cases.

The complete record on appeal has not been settled or certified in either case, nor has the clerk of the district court certified or transmitted to this court any copy of any portion of the record or proceedings below. There have been filed in this court certificates of the clerk of the district court, stating that certain proceedings were had in that court, but these certificates are not records or copies of records or copies of proceedings.

There is no proper showing — this is to say, no record showing — that the appeals here sought to be docketed and dismissed were actually taken; or that, if taken, they should be docketed; or that, if docketed, they should be dismissed. The pending motions must, therefore, be denied. Such denial, however, will not preclude the filing of new motions, upon a proper showing. Motions denied without prejudice.