Dietz v. Scott

THE COURT.

This is an appeal from a judgment foreclosing a mortgage. The appeal purports to be taken under the new or alternative method prescribed by section 953a et seq. of the Code of Civil Procedure, but the notice required by that section was not given to the clerk of the court below, requesting the preparation of such portions of the record as the defendants desired to use upon the appeal. The clerk, however, prepared and certified to a record which purports to contain the judgment-roll, several intermediate orders made by the trial court, a paper writing signed by the defendants, declaring and notifying the commissioner appointed to make the foreclosure sale that the mortgaged premises were by virtue of a pre-existing homestead exempt from execution to the extent of five thousand dollars; and another paper writing, filed with the clerk subsequent to the entry of the judgment, setting forth numerous objections to the judgment, and demanding that the judgment be dismissed for the reasons stated in the objections.

The intermediate orders and the papers referred to are clearly no part of the judgment-roll, and as their integrity and purpose have not been certified to by the trial judge, cannot be considered here.

(Totten

v.

Barlow,

165 Cal. 378, [132 Pac. 749].)

The record before us does not set out nor purport to set out the evidence adduced at the trial; and, as was' said in the case of

Totten

v.

Barlow,

“We have, therefore, simply an appeal upon the judgment-roll, and can consider only the papers and records constituting such judgment-roll.”

[322]

Apparently the several points attempted to be made in the support of the appeal relate solely to the sufficiency of the evidence to sustain the findings and judgment made by the lower court. The findings of the court, however, sustain the judgment ; and in the absence of a record showing the evidence it must be presumed that the evidence in turn supports the findings.