Conner v. Rose

HERNDON, J.

The plaintiff herein appeals from the order of dismissal which was entered upon the motion of defendant and respondent.

The record before us consists of (1) appellant’s complaint filed January 23, 1961, against one Jeff Chandler and seeking recovery of money allegedly due under a contract providing that appellant would perform certain services as a “Personal Manager”; (2) an answer filed by Jeff Chandler on March 14, 1961, in which the allegations of the complaint were generally and specifically denied and it was alleged by way of affirmative defense that appellant’s complaint failed to state facts sufficient to constitute a cause of action; (3) a stipulation and order filed October 27, 1961, substituting the present respondent, Edward M. Rose, ‘ ‘ as the Executor of the Estate of Jeff Chandler ... as party-defendant in place of Jeff Chandler, defendant”; (4) a minute order dated October 8, 1962, and entered October 10, 1962, which provides as follows: “Motion of defendant for order to dismiss complaint (Submitted October 2, 1962.) Motion granted (24 C2d 406). It appearing to the Court that the above entitled action should be dismissed pursuant to Section 581-a CCP, said action is ordered dismissed as to the defendant Jeff Chandler together with costs in the sum of $-. Let execution issue hereon. Counsel notified.”; and (5) a minute order dated December 6, 1962, indicating that plaintiff’s motion seeking a reconsideration of the order of dismissal had been granted and that, upon reconsideration, the order dismissing the action was reaffirmed.

It is, of course, immediately apparent that from this inadequate record no reviewing court could determine either the grounds upon which the motion to dismiss was made, or what evidence, if any, by affidavit or otherwise, may have been introduced in support of the motion. Appellant, clearly recognizing the total inadequacy of the record which he has presented to this court, states in his brief: “Although the record on appeal does not disclose the basis of the motion to dismiss,

it can be inferred that

such a motion was made on the grounds that a creditor’s claim had not been filed within the time allowed by law.” (Emphasis added.)

It would indeed be both a novel and an unhappy departure from accepted appellate practice to sanction the presentation by an appellant of so inadequate a record that the reviewing court must draw questionable inferences, speculate or

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