Schrader v. Fraenckel

This is an appeal from an order denying in part a motion made to correct a judgment roll. On a trial before a referee, judgment dismissing the complaint- was directed and entered. Thereafter the plaintiff moved to correct the judgment roll by requiring the defendant to insert therein certain findings of fact which the referee had found in favor of the plaintiff but which had been omitted from the judgment roll; and also to remove therefrom the notice of motion for a reference, and the affidavits upon which that motion was presented. The court granted the motion, so far as to require the insertion of the findings of fact, but denied it as to striking out the affidavits and notice of motion for a reference. Those papers have no place in a judgment roll. Section 1237 of the Code of Civil Procedure provides what shall be inserted in a judgment roll, namely, the summons, the pleadings, or copies thereof; the final judgment, and the interlocutory judgment, if any, or copies thereof; and each paper on file, or a copy thereof, and a copy of each order, which in any way involves the merits or necessarily affects the judgment. The affidavits and notice of motion for a reference do not affect the merits or the judgment. The order of reference does affect the judgment and is properly inserted therein as it is the evidence of the authority of the referee to act. The affidavits and notice of motion only incumber the record and should not be incorporated in the judgment roll, if objection is taken thereto. There is no object in bringing them to the attention of the court. The making of the order of reference cannot be reviewed. It was granted upon the motion of the plaintiff who is the defeated party in the action. The question is of very little practical importance in this case, but the plaintiff is technically right and the order appealed from must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.