#### Howard, appellant, *v.*Quinn, respondent.

*Papers*— considered, *on appeal.*This court will not review papers in the transcript, which were not used on the hearing in the court below, or have not been certified properly by the clerk of the district court.

Jurisdiction — *appeal from probate court.*The district court cannot acquire jurisdiction of an action that has been appealed from the probate court, unless all the papers belonging thereto and a transcript of all the proceedings in the probate court are transmitted to the clerk of the district court.

*Appeal from First District, Jefferson Oouni/y.*

M. 0. Page, for the motion to strike out papers.

S. Orr, contra.

*340BlaKb, J.

Tbe appellant commenced two actions against Er-vin and others in tbe probate court of Jefferson county, to recover tbe value of certain gold dust, and filed affidavits and undertakings for tbe attachment of tbe property of tbe defendants. Writs of attachment were served upon tbe respondents, who made verbal answers to tbe sheriff respecting tbe credits and personal property in their possession belonging to tbe defendants. Tbe appellant obtained judgments in tbe suits, and tbe respondents were examined by tbe court concerning tbe credits and property, and *“*discharged from liability as garnishees.” Tbe district court dismissed tbe appeal, which was taken from this order, and tbe appellant appealed to this court. Tbe case is before us upon the motion of tbe respondents to strike from tbe transcript tbe complaints and affidavits and undertakings for attachments.

Tbe transcript contains tbe following certificate: “ I, W. L. Hall, clerk of tbe district court, do hereby certify that tbe foregoing is a true and correct transcript of tbe papers, orders, etc., that it purports to be. I further certify that among tbe papers herein copied tbe following are not among tbe records of my office, being held and retained by tbe probate judge of said county, to wit: Tbe complaints, affidavits and bonds for attachments.”

Tbe three hundred and seventy-ninth section of tbe Civil Practice Act provides that *“*on appeal from a judgment rendered on an appeal, or from an order, tbe appellant shall furnish tbe court with * * * a copy of tbe papers used on tbe bearing in tbe court below.” It does not appear that tbe papers described in tbe motion were used on tbe bearing in tbe district court. This court will not reverse the decision of tbe court below by reason of any matter of fact that was not shown or offered there. *Wallace*v. *Eldredge,*27 Cal.. 498.

Tbe complaints, affidavits and undertakings, which have been copied into tbe transcript by tbe clerk of tbe court below, are not properly certified and cannot be considered by us. *Gordon*v. *Clark,*22 Cal. 533; *Stone*v. *Stone,*17 id. 513. Tbe motion must be sustained.

Tbe case was then beard on its merits. Tbe appeal from tbe probate court was dismissed by Wade, J.

*341S. Orr and JohNstoN & Toole, for appellant.

The appeal from the probate court was proper. Civ. Pr. Act, § 409. The court below bad jurisdiction of tbe garnishees from the time the service was made on them by the sheriff. Id., § 145.

This is an action between appellant and the garnishees, and an appeal is proper. Drake on Attach., § *452; Norris*v. *Burgoyne,*4 Cal. 409; *Smith*v. Brown, 5 id. 118 ; *McCullough*v. *Clark,*41 id. 298; *Honey*v. *Crane,*12 Pick. 167; *Folsom,*v. *Haskell,*11 Cush. 470 ; *Oliver*v. *Chicago & A. R. Co.,*17 Ill. 587; *Crane*v. Shaw, 13 Mass. 215 ; *Porter*v. *Stevens,*9 Cush. 535.

The notice of appeal and undertaking were given according to the statute, and the appeal was duly perfected. Civ. Pr. Act, §§ 409-415. There should have been a trial *de novo.*Id., § 418.

The service of the garnishment and answers of the garnishees constituted the action appealed from. No other pleadings are needed. The defendants had no interest in the proceedings after judgment against them' and cannot be proper parties to this appeal.

M. C. Page, for respondent.

The district court never acquired jurisdiction of this proceeding. Our statute only allows an appeal from a judgment of the probate court, not from orders.

The records have not been transmitted to the probate court, as required by law. Civ. Pr. Act, § 415. Any garnishment under attachment is a part of the records. Drake on Attach., § 658 *a.*

Appellant took no measures to have the proper record filed, and the court below was compelled to dismiss the appeal from the probate court.

Blare, J. Some of the facts appearing in the transcript are stated in the opinion of the court upon the motion of the respondents. An appeal has been taken from an order of the probate court discharging- the respondents from liability as garnishees. The defendants in the original actions are not interested in this proceeding, and are not named as the parties thereto, and it is evident that the cases in the district court are not the same as those which were commenced in the probate court. The parties

*342and subjects of controversy are not identical. We refrain from deciding that tbe district court can- acquire jurisdiction of this proceeding, which cannot affect the original suits.

But, assuming that the appeal has been taken in a civil case and is properly before us, we are satisfied that the appellant has not complied with the statute governing appeals from the probate court. The order of the probate court, which was appealed from, was made March 3, *1874;*the notice of appeal was filed March 12, 1874, and the undertaking on appeal was approved and filed March 14, 1874. The following papers were filed in the district court September 29, 1874: The affidavit of appellant relating to the answers of the respondents as garnishees, the citation of the probate court, and the notice and undertaking on appeal. The respondents filed a motion to dismiss the appeal October 6, 1874, and the district court granted the same October 8, 1874.

All appeals from the probate to the district court must be perfected within thirty days from the rendition of the judgment appealed from. Oiv. Pr. Act, § 410. Within ten days after the notice and undertaking on appeal have been filed, the probate judge or clerk *“*shall make a full and complete transcript from the docket of all proceedings had in said action, and transmit the same, together with the complaint, answer, motions, pleadings, and all other papers pertaining to or belonging to said cause, to the clerk of said district court.” Id., § 415. The object and importance of these requirements are obvious when we examine section 418, which provides that *“*all appeals taken by virtue of this act shall be tried in the district court upon the papers in the cause, as if the same had originally been instituted in said court.” After the respondents made their motion to dismiss the appeal in1 the court below, the appellant did not suggest that the record was incomplete, and made no effort to perfect his appeal by filing any papers. The district court did not have jurisdiction of the proceeding, and dismissed the appeal.

*Judgment affirmed.*