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Goyhinech v. Goyhinech

80 Cal. 410 Court Cal. Decision date 1889-09-04 Docket No. 13059 English

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p. 410
[No. 13059.
In Bank.
September 4, 1889.]
M. S. GOYHINECH, Respondent, v. JEAN GOYHINECH, Appellant.

Headnote

Bindings — Waiver — Presumption. — If the record on appeal does not show that findings were not waived, a waiver will be presumed in support of the judgment.
Bill of Exceptions on Another Appeal. — A bill of exceptions made on a non-appealable order, and not in the transcript on appeal from the judgment, cannot be considered on the latter appeal.
Appeal from a judgment of the Superior Court of Los Angeles County.
The facts are stated in the opinion.
Wicks & Ward, for Appellant.
W. T. Williams, and Williams & McKinley, for Respondent.

Action for divorce; judgment for plaintiff; defendant appeals. The sole point made is that the judgment should be reversed for the want of findings. None appear in the record. But, on the other hand, there is nothing in the record to show that findings were not waived. There is another appeal in the same case from a non-appealable order, which appeal has been dis

p. 411
missed. And there was a bill of exceptions upon said appeal. But such appeal was from a different determination from the one in question here, which determination was not the subject of an appeal, and the bill of exceptions thereon is not even in the transcript on this appeal. That bill cannot be considered here. As above stated, therefore, there is nothing in the record before us to show that findings were not waived. And in such case it must be presumed that they were waived. (Mulcahy v. Glazier, 51 Cal. 627 ; Smith v. Lawrence, 53 Cal. 34 .)

The respondent has made a motion to dismiss this appeal. But as we think that the judgment should be affirmed, we have not considered it necessary to examine the questions presented by that motion.

We therefore advise that the motion to dismiss the appeal from the judgment be denied, and that the judgment be affirmed.

Foote, C., and Belcher, C. C., concurred.

For the reasons given in the foregoing opinion, the motion to dismiss the appeal is denied, and the judgment is affirmed.

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