Sobzhak v. Rivera — 126 Cal. App. 217

Majority

p. 217

[Civ. No. 8655.

First Appellate District, Division Two.

September 23, 1932.]

FRED SOBZHAK, Appellant, v. ESPIRIDION RIVERA, Respondent.

p. 218

James W. Bell for Appellant.

Robert J. Adcock for Respondent.

This purports to be an appeal from an order made on August 12, 1930, by the trial court granting the motion of the defendant to set aside a decree entered against him on April 24, 1930. It cannot be heard and the order appealed from must be affirmed because there is no record on which this court can act. (2 Cal. Jur., p. 980.)

On November 17, 1930, there was filed in the office of the clerk of the Supreme Court one document which purports to contain copies of a decree for registration and some other papers filed in a proceeding commenced to register a title. (Stats. 1915, p. 1932.) Annexed to said document is a certificate by the county clerk in which he certifies that said copies are full, true and correct. That document is not authenticated in any other manner. There is attached

p. 219

to the plaintiff’s brief a supplement. The supplement is wholly printed and purports to be a bill of exceptions. It does not elsewhere appear in the record. At most it merely purports to be a printed copy not otherwise authenticated. Furthermore it does not show what papers, if any, were used on the hearing in the trial court. On a record so made up this court is not authorized to make any order excepting to dismiss or affirm.

If we were at liberty to make a complete examination of the papers the same result would follow. The affidavit of merits was sufficient. Furthermore the affidavit made by the defendant showed that he did not appear in the action because the plaintiff stated to him that no judgment would be taken against him. That statement was not denied in the affidavit of the plaintiff. The trial court therefore did not err in setting aside the default.

The order appealed from is affirmed.

Nourse, P. J., and Spence, J., concurred.