McKinnell v. Hansen

CONREY, P. J.

The attorney for appellants opens his brief with the statement that this is an appeal from a judgment denying the relief prayed for in the cross-complaint of appellants. He says that the cross-complaint alleged that the property described therein was the community property of appellants, and that appellant Hettie Hansen executed deeds thereof to the respondent; that appellants asked to have the deeds set aside and canceled, or that the respondent be declared a constructive trustee for appellants on certain grounds stated. The brief then proceeds to argue the following propositions: (1) That the finding that Hettie Hansen did not execute the deeds because of fear of arrest or immunity from arrest is not justified by the evidence. (2) That the finding that respondent did not have actual notice that the property was the community property of Hettie Hansen and H. P. Hansen is not supported by the evidence. (3) That there is no finding of fact, nor does the evidence justify the finding, that respondent was an encumbrancer in good faith and for a valuable consideration, as provided in section 164 of the Civil Code. (4) That the burden of proof is on the respondent to show that she is an encumbrancer in good faith. (5) That appellants are not estopped to assert that the property is community property. (6) That the finding that the consideration consisted of a prior existing indebtedness and additional advances of money at the time of the execution of said deeds is not justified by the evidence. Within the argument on the first proposition the point is presented that the trial court erred in refusing to admit certain offered testimony to which objections made by respondent were sustained by

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that court. The foregoing is a complete outline of the points presented for consideration here. •

The typewritten transcripts, being a “Clerk’s Transcript on Appeal,” certified by the clerk of the superior court, and a “Reporter’s Transcript” approved by the judge, are the only papers on file herein, except appellants’ brief. Section 950 of the Code of Civil Procedure provides, among other things, that on appeal from a final judgment the appellant must furnish the court with a copy of the judgment-roll. Section 953 of the Code of Civil Procedure provides that the copy of the judgment-roll must be certified to be correct by the clerk or the attorneys. These requirements have stood unchanged in the code since 1874, although some other phraseology of section 950 was amended in 1915 (nearly a year after the transcripts in the case were filed). In 1907 sections 953a, 953b, and 953c of the Code of Civil Procedure were enacted. They provide for what is called the alternative method of preparing a record on appeal. This alternative method was designed to apply to a record made on the trial of an action or of some proceeding in an action. Thereby the appealing party is allowed to require that the stenographic reporter prepare a transcript of his phonographic report of the trial, in cases where there was such a report. After notice is prescribed, the transcript is settled and allowed by the judge. Thereupon it shall “become a portion of the judgment-roll and may be considered on appeal in lieu of the bill of exceptions now provided for by law.” Sections 953a, 953b, and 953c do not contain any provisions which modify the force or effect of sections 950 and 953 of the Code of Civil Procedure, or the rules of practice thereunder, on an appeal from a judgment.