Koeberle v. Coit

SLOANE, J.

This action was brought upon a promissory note and chattel mortgage securing the same. The note and security had been given in satisfaction of a judgment against defendant on a store account. The defense was that the note and mortgage had been obtained by duress and menace, •by means of a threat to levy execution under the former judgment upon defendant’s exempt household furniture, and to set the same out in the street in front of defendant’s home so that the neighbors would see that defendant’s household goods were being taken under process of law. The trial court found against defendant’s contention, and gave judgment for plaintiff on the note and mortgage, from which judgment defendant has appealed. The ground relied on for a reversal is insufficiency of the evidence to sustain the findings and judgment.

The record is brought up on what purports to be a typewritten transcript under the alternative method of appeal, and consists of the judgment-roll and what is denominated a “bill of exceptions,” and comprises a list of exceptions and objections to the jurisdiction of the court, to the sufficiency of the evidence to support the findings, and a brief synopsis of the evidence, in narrative form, followed by a certificate of the trial judge that “because the foregoing evidence does not appear of record, I, the undersigned, the Judge who tried the said action, have, on due notice, settled this bill of exceptions, to the end and for the purpose that the same may be made a part of the record herein.”

[1]

Sections 953a, 953b, and 953e of the Code of Civil Procedure, providing for an appeal upon the typewritten transcript, make no provision for presenting the evidence by a bill of exceptions. It is only where the proceedings on the trial have been reported and can be produced in full by a reporter’s transcript that this form of appeal can be resorted to.

(Clemens

v.

Gregg,

34 Cal. App. 272, [167 Pac. 299] ;

Harpold

v.

Slocum,

168 Cal. 364, [143 Pac. 609];

Bush

v.

Allen,