Home Owners' Etc. Corp. v. Engelbertson

SCHAUER, P. J.

Defendants’ notice of appeal recites that they appeal “from the order and decree of the Superior Court of the State of California, in and for the County of Santa Barbara, therein made and entered on the 13th day of March, 1941, in Book 63 of Minutes of the Superior Court at page 182, given in favor of the plaintiffs and against the defendants above named, to-wit: Denying motion of defendants to vacate and set aside judgment and decree docketed and entered on the 1st day of February, 1940, and from the whole thereof.”

The clerk’s transcript constitutes the sole record before us on this appeal, and none of the documents set forth therein bears endorsement showing the date of entry of any of such documents or whether any of them was ever actually entered. Furthermore such record does not purport to show any “order . . . made ... on the 13th day of March, 1941, . . . Denying motion of defendants to vacate and set aside

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judgment and decree docketed and entered on the 1st day of February, 1940, ...” We do, however, find in the record an order entitled “ORDER DENYING MOTION TO SET ASIDE JUDGMENT,” and reading in material part as follows: “The motion of defendants, ... to set aside judgment, . . . having been regularly heard on the 10th day of March, 1941, . . . and the matter having been fully argued and the Court having been duly advised and having duly considered the same, it is hereby ordered that said motion to set aside judgment be and the same is hereby denied.

“The Clerk of the above-entitled Court is hereby directed to enter this order.

“Dated: March 10th, 1941.

(Endorsed) “ERNEST D. WAGNER

FILED: March 10, 1941. “Judge of the Superior Court.

J. E. LEWIS, Clerk.

By C. E. JAMES, Deputy Clerk.”

We assume in favor of an intelligible record for appellants, that, in spite of the three-day discrepancy in dates between the “order . . . made ... on the

13th