Sea v. Lorden

WORKS, J.,

pro tem.

This is an appeal prosecuted under what is known as the alternative method, a method characterized by Mr. Justice Shaw in

Estate of Gamble,

166 Cal. 253, [135 Pac. 970], as. “a pitfall for the unwary.” Sueh it has been and such it continues to be, but the virtue of continually calling the attention of the profession to the repeated depart

[445]

ures from proper procedure under the method has had little more reward than that which is said to be virtue’s own. These remarks are prompted by the fact that the present case exhibits another instance of a failure to observe the provisions of section 953c of the Code of Civil Procedure, to the effect that, on an appeal under the alternative method, the parties must print in their briefs “such portions of the record as they desire to call to the attention of the court.” In a recent opinion we have cited many cases to the proposition that “appellate courts will not look to the typewritten transcripts filed under the alternative method of appeal for the purpose of determining whether grounds exist for the reversal of the judgment appealed from”

(Barker Bros.

v.

Joos,

36 Cal. App. 311, [171 Pac. 1085]). In the present case there has been some effort to comply with the rule requiring a printing in the briefs of the necessary parts of the record, but enough does not appear to enable us to pass upon the questions which the appellant seeks to present upon the appeal, with the exception of the one which we discuss below.

The statements of facts in the briefs of the respective parties agree in showing, and extracts from the findings of fact indicate, that the action is one to recover the reasonable value of goods sold and delivered. The statements of fact made in the brief of the respondent, and the direction for judgment as stated in the findings, printed in appellant’s brief, show that the trial court in its judgment allowed interest upon the claim sued on from the date of the last delivery of goods; but in an action for the reasonable value of goods on an open account interest is allowable only from the day upon which a balance is ascertained,