Dumas v. Stark

GIBSON, C. J.

Judgment was entered in favor of the plaintiff in this action for the rescission of the sale of a business. Defendant has appealed on a partial clerk’s transcript, asserting that the judgment is not supported by the findings.

Rule 52 of the Rules on Appeal provides: “If a record on appeal does not contain all of the papers, records and oral proceedings, ... it shall be presumed in the absence of proceedings for augmentation that it includes all matters material to a determination of the points on appeal. On an appeal on the judgment roll alone, or on a partial or complete clerk’s transcript, the foregoing presumption shall not apply unless the error claimed by appellant appears on the face of the record.” The last sentence was not in the rule when it was adopted in 1943, and it was added in 1951 to make it clear that there was no intent to allow unwarranted presumptions against the judgment. If, on appeal on a judgment roll or clerk’s transcript, the error urged by the appellant does not appear on the face of the record, all intendments will be made in support of the judgment, as was the case prior to the adoption of rule 52.

(White

v.

Jones,

136 Cal.App.2d 567, 571 [288 P.2d 913];

Utz

v.

Aureguy,

109 Cal.App.2d 803, 805-807 [241 P.2d 639].) On the other hand, if the error claimed by appellant does appear on the face of the record on such an appeal, the presumption in rule 52 is applicable.

(West Covina Enterprises, Inc.

v.

Chalmers,

49 Cal.2d 754, 758 [322 P.2d 13];

Palpar, Inc.

v.

Thayer,

82 Cal.App.2d 578, 583 [186 P.2d 748];

Alkus

v.

Johnson-Pacific Co.,

80 Cal.App.2d 1, 9 et seq. [181 P.2d 72]; see 3 Witkin, California Procedure (1954), pp. 2242-2243.)