Singh v. Kashian

CONLEY, J.

This is an appeal by M. Kashian and A. Shuklian from a judgment for $1,000 which the trial court granted to the plaintiff against the two appellants and a third defendant who has not appealed, Aram Joseph, Jr., as executor of the estate of Aram Joseph, also known as Aram Hovsepian.

The evidentiary record on appeal consists of a settled state

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ment, prepared under rule 7 of the Rules on Appeal from Municipal Courts in Civil Cases, instead of a reporter’s transcript.

At the outset, the respondent moved for a dismissal of the appeal (rule 4, Revised Appellate Department Rules; rule 13(c), Rules on Appeal from Municipal Courts in Civil Cases), urging that the settled statement of facts is fatally defective because it does not recite that any exceptions were taken by appellants, and because it does not set forth the “points upon which this appeal is predicated.”

The settled statement of facts provided for by rule 7 is not a bill of exceptions, but a substitute for a reporter’s transcript; it is not necessary for an appellant to enumerate his exceptions therein, unless such exceptions actually were taken as part of the oral proceedings at the trial. Respondent’s claim that the settled statement is ineffective because it does not contain a list of points to be raised on the appeal is equally without merit. Rule 7 is clear: if the settled statement covers all of the proceedings, there is no necessity of stating the points to be raised by appellants. It is only when an appellant proposing a settled statement desires a partial or restricted statement of the record, that he must enumerate the points he desires to raise on the appeal, and if he does so, he cannot later urge any additional points. When an appellant purports to incorporate an account of all of the evidence in his proposed settled statement and thus tenders a complete record in condensed form, there is no requirement that his points on appeal be set forth in the statement.

Exceptions, orally noted during a trial, or deemed to have been taken by virtue of the provisions of section 647 of the Code of Civil Procedure are still essential to the successful prosecution of any appeal. In this action the appellants do not claim that the trial court erred in ruling on the admissibility of evidence; they make one point only— that the evidence is not sufficient to justify the judgment. Section 647 of the Code of Civil Procedure reserves an exception to the “final decision in an action,” and the appellants are thus entitled to raise the only point uged by them on this appeal.