Wittman v. Wittman

STURTEVANT, J.

From the judgment of the superior court awarding a decree of divorce to her husband, the plaintiff, and denying her a divorce on the allegations contained in her cross-complaint, the defendant wife has appealed. In his complaint the plaintiff prayed for a decree based on the ground of cruelty. The defendant answered the complaint and at the same time filed a cross-complaint. Later she filed an amended cross-complaint. In the latter pleading she prayed for a divorce based on the ground of cruelty. By the stipulation of the parties the allegations contained in the amended cross-complaint were deemed denied. The first point made by the defendant is that the trial court did not determine the allegations set forth in her amended cross-complaint. It is not contended that the trial court did not make findings on said allegations. The point is presented in this manner. The appeal was taken and presented under section 953a, Code of Civil Procedure. The defendant has brought up what purports to be the judgment roll certified by the clerk. She has also brought up a transcript of the evidence certified by the reporter and also certified by the judge presiding at the trial. After the action had been tried the said judge wrote a memorandum of decision apparently for the assistance of counsel in the preparation of findings and the framing of a decree. Among other documents contained in the purported judgment roll the clerk included the said memorandum. Pointing to certain language contained in said document the defendant predicates the point above stated. For several different reasons the point may not be sustained. The contents of the judgment roll are specified in the statute. (Code Civ. Proe., sec. 670, subd. 2.) It is perfectly clear that the memorandum above mentioned is not one of the documents 'specified in said statute. The fact that the document was, notwithstanding, inserted in the purported judgment roll and certified as being a part thereof

[186]

does not give said document any additional standing.

(Sutcliffe

v.

Sutcliffe,

220 Cal. 398, 401 [31 Pac. (2d) 195].) Conceding that in some instances a court of review will for certain purposes examine such a memorandum, it is settled law that the court of review will not examine such a memorandum for the purpose of defeating the judgment of the trial court.