Fugazi v. Kelly — 56 Cal. App. 244

Majority

p. 244

[Civ. No. 4113.

First Appellate District, Division Two.

January 20, 1922.]

BANCA POPOLARE FUGAZI (a Corporation), Respondent, v. JOHN F. KELLY et al., Defendants; JOSEPH SLYE, Appellant.

Headnote

[1] Appeal—Judgment—Record—Absence of Bill of Exceptions— Presumption.—An appeal from -a judgment must be deemed to be one on the judgment-roll alone, where no bill of exceptions is presented.

[2] Id.—Judgment for Foreclosure — Minute Entry for Lesser Amount—Effect of—Record—Appeal Without Merit.—An appeal from a judgment in an action for the foreclosure of a mortgage based on the claim that the trial court was bound by the minute entry of the judgment, which was for a lesser amount, is without merit, where no bill of exceptions is presented, since sueh entry is no part of the judgment-roll.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. H. M. Owens, Judge. Affirmed.

The facts are stated in the opinion of the court.

Joseph Slye, in pro. per., for Appellant.

Harding & Monroe and Robert H. Borland for Respondent.

Defendant Slye appeals from a judgment foreclosing a mortgage securing payment of a note for $25,000. The complaint asked for judgment for $25,000, with accrued interest, counsel fees, and costs. The clerk of the court after trial made an entry in his minutes reciting that judgment had been ordered in the sum of $3107.37, with counsel fees and costs. A few days thereafter findings of fact and conclusions of law were filed with a decree awarding judgment in the sum of $31,447.24, with counsel fees and costs. Appellant insists that the trial court was bound by the minute entry made by the clerk.

[1] No bill of exceptions is presented, so the appeal must be deemed to be one on the judgment-roll alone. [2] The minute entry of judgment is no part of the judgment-roll.

p. 245

(Sec. 670, Code Civ. Proc.) In examining the judgment-roll we find no error.

The appeal is without merit, as the amount noted in the entry of the clerk was manifestly a mere clerical error.

Judgment affirmed.

Langdon, P. J., and Sturtevant, J., concurred.