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Jenkins v. Zimmerman

77 Cal. App. 341 Court First Appellate District, Division Two. Decision date 1926-04-05 Docket Civ. No. 5346 English

Delivered by NOURSE, J.

Contents

Majority

p. 341
[Civ. No. 5346.
First Appellate District, Division Two.
April 5, 1926.]
HARRY G. JENKINS et al., as Executors, etc., Appellants, v. I. ZIMMERMAN, Respondent.

Headnote

[1] Appeal—Injunction—Order to Show Cause—Transcript—Insufficient Becord.—Where an appeal from an order dismissing an order to show cause after a hearing in an action for an injunction is presented on a typewritten record certified by the clerk, but not by the trial judge, and where no transcript was filed, although the reporter was ordered to prepare it, the record is insufficient to warrant a review by the appellate court under section 953a of the Code of Civil Procedure.
[2] lb.—Order Eefusing Injunction—Affidavits—Becord.—Where the record on appeal does not contain a motion for an injunction or any information of the grounds upon which the motion was made, but it does appear that two affidavits filed ‘‘in opposition to motion for injunction" were sufficient to support the order denying the injunction, the appellate court cannot say, in the absence of any other showing, that error occurred.
(1) 4 C. J., p. 416, n. 3, p. 445, n. 65, p. 446, n. 70. (2) 4 C. J., p. 845, n. 97, p. 846, n. 4, p. 898, n. 92.
1. See 2 Cal. Jur. 633.
APPEAL from an order of the Superior Court of the ■ City and County of San Francisco dismissing an order to show cause in a proceeding for an injunction. Louis H. Ward, Judge.
Order affirmed.
The facts are stated in the opinion of the court.
p. 342
H. M. Anthony for Appellants.
James M. Thomas for Respondent.

Plaintiffs sued to restrain the erection of an apartment house by the defendant on the theory that the plans and specifications did not provide sufficient air space as contemplated by the State Housing Act. [Stats. 1923, p. 781.] Upon the hearing of plaintiffs’ motion for a temporary injunction two affidavits were filed by the defendant. It does not appear whether any oral testimony was taken, but the record discloses an order of the trial judge dismissing the order to show cause after a hearing. [1] From this order the appeal was taken and has been presented on a typewritten record, certified by the clerk, but not by the trial judge. Though the reporter was ordered to prepare a transcript, none has been filed. The record is plainly insufficient to warrant a review by this court. (Code Civ. Proc., sec. 953a; Jeffords v. Young, 197 Cal. 224 [ 231 Pac. 724 ], and cases there cited.)

[2] Furthermore, the notice of appeal states that it is taken from the order refusing to grant appellants an injunction, but the record does not contain a motion for the injunction or any information as to the grounds upon which the motion was made. It does appear that two affidavits were filed “in opposition to motion for injunction.” Assuming that these affidavits were before the trial court on the hearing, they were sufficient to support the order denying an injunction and in the absence of any other showing we cannot say on this record that error occurred.

Order affirmed.

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

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