Palmer v. Guaranty Trust & Savings Bank

SHAW, J.

Appeal by defendant from a judgment entered in favor of plaintiff.

The action is to recover upon a claim against the estate of J. F. McDermott, deceased, presented to the executor and by it rejected. As appears from the complaint, the claim grew out of the fact that plaintiff borrowed from deceased three hundred dollars and by grant deed, intended as a mortgage to secure same, conveyed to the lender a certain lot upon which the grantee gave a mortgage for a loan procured by him and thereafter conveyed his equity in the lot in exchange for other property. The claim was for the sum of $1,154.40, alleged to be the difference between what McDermott received for the property and the sum due him on the loan so made to plaintiff.

The appeal is had and taken under the alternative method, and while appellant in its brief directs attention to a number of rulings which it insists are errors committed by the court and upon which it bases an argument for reversal, it has neglected to print in its brief the parts of the record -necessary to illustrate the points made, as required by section 953c of the Code of Civil Procedure, and without reference to which its argument is unintelligible. Hence, counsel for re

[574]

spondent, relying upon what is said in

Miller

v.

Oliver,

174 Cal. 404, [163 Pac. 367], and

Williams

v.

Hawkins,

20 Cal. App. 162, [128 Pac. 754], to the effect that the court will, in considering the questions presented, confine itself to an inspection of the portions of the record so printed in appellant’s brief and, unless they exhibit the error, will affirm the judgment appealed from, has, except as to one or two questions, submitted the case without serious argument. As a result of the action of the courts pursuant to the provisions of section 953c in affirming judgments oh appeal upon what is printed in appellant’s brief or supplement thereto and without referring to the typewritten transcript, the legislature in its wisdom, and to relieve such attorneys from the consequences of acts due to indolence or incompetency, amended the section by providing that no appeal should be decided adversely by reason of such omission, but that the court should direct the party to print and serve upon the adverse party and file with the court a supplement to his brief wherein should be set forth “in full that portion of the record relied upon by such, party and not printed in any former brief” and which “may be desirable for the full presentation of the points at issue. ’ ’ It might be urged with some reason that under this provision the court should first acquaint itself with the points made in the brief and then, after a careful examination of the typewritten record, inform appellant’s attorney just what parts of the record were necessary to illustrate the points made by him in his brief, which is about as practical as the Dutchman’s flea powder, the efficacy of which depended upon catching the flea, choking its mouth open, and administering the poisonous powder, which was guaranteed to kill. However this may be, it is clear that under the amendment of the statute the power of the court upon such defective record is restricted to a continuance of the hearing of the appeal, the purpose of which may be to delay respondent in collecting a righteous judgment, and grant appellant’s counsel further time to present a record under an order therefor and to such an extent as may be necessary to fully illustrate the errors of which he complains. Under this method not only is little left to the attorney of an appellant, but it is well-calculated to-encourage indolence and relieve him of responsibility to his client, who, as a result, is, or may be, the victim of such