Ponce v. Marr

SHENK, J.

This cause was transferred to this court on its own motion. A trial in the Superior Court in and for the County of San Mateo resulted in a judgment for the plaintiff. On appeal the judgment was reversed by the District Court of Appeal.

(Ponce

v.

Marr,

(Cal.App.)

295

P.2d 43.) A hearing was ordered because of the italicized portion of the following quotation concerning the continuing effect of an opinion and decision of the District Court of Appeal after an order of transfer to this court:

“An excellent explanation of the distinction between an attempt to show the terms of an instrument by secondary evidence, which attempt properly would be denied under the best evidence rule, and the producing of oral evidence although written evidence also exists, is given in the case of

Altramano

v.

Swan

(Cal.App.), 119 P.2d 401. That case does not appear in the California Appellate Reports because the Supreme Court granted a hearing.

(Altramano

v.

Swan,

20 Cal.2d 622 [128 P.2d 353].) The Supreme Court came to the same conclusion as the District Court of Appeal as to the disposition of the cause, but did not mention the point of evidence;

however, since the cause, was remanded for further trial and since the District Court of Appeal had made its ruling on the point of evidence specifically for the guidance of the trial court at the new trial, and the Supreme Court

[161]

did not interfere with that ruling, the ruling may be regarded as authoritative.”

The emphasized language in the foregoing quotation is not a correct statement of the law and, if allowed to stand, would result in confusion with reference to the subject. It therefore seems necessary to reiterate that the effect of an order of transfer to this court is to remove the cause in its entirety from the District Court of Appeal. Thereafter it is pending in this court the same as if originally lodged here.