Union FM v. Southern Cal. FM

10 Cal.2d 671 (1938) UNION FLOWER MARKET, LTD. (a Corporation), Appellant,

v.

SOUTHERN CALIFORNIA FLOWER MARKET, INC. (a Corporation), et al., Respondents.

L. A. No. 16422. Supreme Court of California. In Bank.

February 16, 1938. Lorrin Andrews, Fred W. Heath and Montgomery G. Rice for Appellant.

J. Marion Wright, Biby & Biby and John E. Biby for Respondents.

SEAWELL, J.

This is an appeal from a judgment on the pleadings in favor of defendants.

The defendants contend that the appeal should be dismissed or the judgment affirmed for failure of appellant to present a proper record on appeal. [1] Section 950, Code of Civil Procedure, provides that on appeal from a final judgment the appellant must furnish the court with a copy of the judgment roll, certified by the clerk or the attorneys (sec. 953, Code Civ. Proc.). By section 670, Code of Civil Procedure, it is provided that the judgment roll includes the pleadings. The answer is not included in the record filed in this court in the instant case. [2] But where judgment has been entered for defendants on the pleadings the sole question is whether the complaint states a cause of action. (Hibernia Sav. & L. Soc. v. Thornton, 117 Cal. 481 [49 P. 573]; Shanley v. American Olive Co., 185 Cal. 552 [197 P. 793]; Elmore v. Tingley, 78 Cal.App. 460 [248 P. 706].) [3] The appeal will not be dismissed for failure to include in the record on appeal a part of the judgment roll not material to determination of the appeal. (Paige v. Roeding, 89 Cal. 69 [26 P. 787].)

[4] The judgment for defendants on the pleadings, according to its recitals, was entered upon "the complaint as amended by interlineation". On the complaint as copied in the record herein the interlineations appear as interlineations, bearing the initials of the trial judge in the margin. The clerk's certificate, by which the papers constituting the judgment roll or clerk's transcript are authenticated (sec. 953, Code Civ. Proc.), recites that said transcript contains a full, true and correct copy of the complaint and other instruments contained therein "together with the endorsements on said documents as the same now appear on file and/or of record in this office". The amendments by interlineation are endorsements on the complaint as originally filed.