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Dietz v. Scott

27 Cal. App. 320 Court First Appellate District. Decision date 1915-05-04 Docket Civ. No. 1601 English

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p. 320
[Civ. No. 1601.
First Appellate District.
May 4, 1915.]
JOHN DIETZ, Respondent, v. JOHN SCOTT et al., Appellants.

Headnote

Foreclosure or Mortgage—Appeal—Orders and Papers not to be Considered.—Upon an appeal from a judgment forclosing a mortgage under the alternative method prescribed by section 953a et seq. of the Code of Civil Procedure, intermediate orders and papers referred to which are no part of the judgment-roll and the integrity and purpose of which have not been certified to by the trial judge, cannot be considered.
p. 321
Id.—Absence or Evidence—Presumption in Favor or Findings.—On such an appeal where the record does not contain the evidence, only the papers constituting the judgment-roll can he considered, and it must he presumed that the evidence supported the findings.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge.
The facts are stated in the opinion of the court.
John Scott, for Appellants.
Perry & Dailey, for Respondent.

This is an appeal from a judgment foreclosing a mortgage. The appeal purports to be taken under the new or alternative method prescribed by section 953a et seq. of the Code of Civil Procedure, but the notice required by that section was not given to the clerk of the court below, requesting the preparation of such portions of the record as the defendants desired to use upon the appeal. The clerk, however, prepared and certified to a record which purports to contain the judgment-roll, several intermediate orders made by the trial court, a paper writing signed by the defendants, declaring and notifying the commissioner appointed to make the foreclosure sale that the mortgaged premises were by virtue of a pre-existing homestead exempt from execution to the extent of five thousand dollars; and another paper writing, filed with the clerk subsequent to the entry of the judgment, setting forth numerous objections to the judgment, and demanding that the judgment be dismissed for the reasons stated in the objections.

The intermediate orders and the papers referred to are clearly no part of the judgment-roll, and as their integrity and purpose have not been certified to by the trial judge, cannot be considered here. (Totten v. Barlow, 165 Cal. 378 , [ 132 Pac. 749 ].)

The record before us does not set out nor purport to set out the evidence adduced at the trial; and, as was' said in the case of Totten v. Barlow, “We have, therefore, simply an appeal upon the judgment-roll, and can consider only the papers and records constituting such judgment-roll.”

p. 322
Apparently the several points attempted to be made in the support of the appeal relate solely to the sufficiency of the evidence to sustain the findings and judgment made by the lower court. The findings of the court, however, sustain the judgment ; and in the absence of a record showing the evidence it must be presumed that the evidence in turn supports the findings.

The judgment appealed from is affirmed..

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