Majority
p. 89[No. 3,283.] SAMUEL CROSS v. JOHN P. ZANE.
Headnote
Appeal from Order.—The appellant, on an appeal from an order which is not made upon affidavits alone, must bring up the facts in a statement, which must specify the grounds upon which he intends to rely on the appeal.Appeal from the District Court of the Twelfth Judicial District, City and County óf San Eran cisco.
The plaintiff recovered a judgment, in September, 1869, against the defendant, for ten thousand one hundred and twenty-four dollars and thirty-two cents, and procured an execution on the same, under which the Sheriff of San Francisco sold several lots, as the property of the defendant, and the plaintiff purchased them for over seven thousand dollars, and received the Sheriff’s deed. The plaintiff after-wards petitioned the Court to revive the judgment to the extent of the amount bid, on the ground that the defendant had no title to the land when the sale took place. The motion was heard on the verified petition used as an affidavit, the records in the action, the execution, Sheriff’s levy, and notice of and return of sale. The Court denied the motion and the plaintiff appealed.
The transcript on appeal contained the petition, a certificate of the Judge, stating what papers were used on the hearing, and the order. There was no statement.
Samuel Oi'oss, for Appellant.
Hambleton <f- Gordon, for Respondent.
The order, which is the subject of the appeal in this case, was not made upon affidavits alone, and it therefore does not
p. 90
fall within the exception in section three hundred and forty-three of the Practice Act. Under the provisions of the Practice Act and the rule upon the subject announced in JELaggin v. Clark, 28 Cal. 162 , and uniformly adhered to since, we cannot disturb the order upon the record before us, and it is therefore affirmed.
Cases cited
- Haggin v. Clark 28 Cal. 162 p. 90