Supple v. Luckenbach

STURTEVANT, J.

As written on the cover of the transcript this is an appeal from an “order denying motion to vacate the judgment filed and entered on July 12, 1938.” The transcript purports to set forth: Notice of Motion to Vacate Judgment; Memorandum of Points and Authorities in Support of Motion to Vacate Judgment; Affidavit in Support of Motion to Vacate Judgment; Affidavit in Opposition to Motion to Vacate Judgment; Notice of Appeal of Edgar F. Luckenbach; Notice to Prepare Record under Code Civ. Proc. sec. 953a; and Clerk’s Certificate to Clerk’s Transcript on Appeal. It does not purport to set forth any order or judgment. The notice of appeal recites the defendant appeals “from the order heretofore made herein denying said defendant’s motion to vacate the judgment filed and entered on or about July 12, 1938, and each and every part thereof.” As the record does not show that such an order was ever

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made, nor set forth a copy thereof, the transcript is insufficient. (Code Civ. Proc. sec. 951.) The defect in the record has not been called to our attention by the plaintiff by a motion to dismiss. (2 Cal. Jur. 763.) Assuming solely for the purposes of this decision that this court has no power to dismiss of its own motion, we will proceed to examine the record further.

An earlier appeal was taken by defendants and was decided against them.

(Supple

v.

Luckenbach,

12 Cal. (2d) 319 [84 Pac. (2d) 52].) We refer to that case for a statement of the facts therein recited. After the judgment dated July 12,1938, was entered the defendants did not appeal from it. They made a motion under Code Civ. Proc., sec. 473, to set it aside. That motion, we understand from what is said in the briefs, was denied and later the defendants filed a purported appeal therefrom. It is that purported appeal which we understand is before us. However it is patent that the defendants could have appealed from that judgment. That they have not done, but they have attempted to appeal from the order refusing to set aside said judgment. Clearly the order appealed from was not appealable. (2 Cal. Jur. 164-166, “Appeal and Error”, sec. 30;