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Costa v. Raza

23 Cal. App. 754 Court Second Appellate District. Decision date 1914-02-05 Docket Civ. No. 1441 English

Delivered by SHAW, J.

Contents

Majority

p. 754
[Civ. No. 1441.
Second Appellate District.
February 5, 1914.]
ANTONIO SILVEIRA COSTA, Respondent, v. DOMINGOS SILVEIRA RAZA, Appellant.

Headnote

Appeal—Order Refusing to Dissol-e Attachment—Grounds of Motion not Disclosed by Record.—An order denying a motion to dissolve a writ of attachment wil be affirmed on appeal, where the grounds upon which the motion was made are not disclosed by the record. An appellate court cannot assume error in the rulings of the trial court; error must affiimitively appear from the record, otherwise the judgment will be affirmed.
APPEAL from an order of the Superior Court of Kings County refusing to dissolve a writ of attachment. M. L. Short, Judge.
The facts are stated in the opinion of the court.
E. T. Cosper, for Appellant.
Miller & Miller, for Respondent.

Appeal from an or der of court denying defendant’s motion to dissolve a writ of attachment issued in the cause.

The grounds upon which the motion was made are not disclosed by the record; hence, it is impossible for the court to say the trial judge erred in mal: mg the order from which. defendant appeals. The only statement in reference thereto is, “that on the 2d day of September, 1913, in pursuance of due and legal notice duly given ,md served upon the plaintiff’s attorneys, Miller & Miller, the defendant, through his attorney, E. T. Gosper, moved i.lie court to set aside and dissolve the levy made under and by virtue of the attachment issued out of said court in :aid matter.” The order recites: “The motion of defendant, to discharge the attachment and the motion to set aside and dissolve the levy made under and by virtue of said attachment, coming on for further hearing at this time, and said motions having been argued, . . . the court having sufficiently considered the law in the premises, orders that said motions be and the same are denied.”

p. 755
While the record contains certain affidavits read at the hearing of the motion, it is impossible, without knowing what the motion was, to say that the court erred in holding that the facts shown by the affidavits were insufficient to support the sainé. Since every intendment is in favor of the judgment of the trial court, we cannot assume error in its rulings; it must affirmatively appear from the record, otherwise the judgment will be affirmed.

The order is affirmed.

Conrey P. J., and James, J., concurred.