Roussin v. Kirkpatrick

CHIPMAN, P. J.

Action for services alleged to have been performed by plaintiff for defendants as a school teacher. The cause was tried by the court without a jury and defendants had judgment, from which and from the order denying his motion for a new trial plaintiff appeals.

The record purports to have been made up under new sections 953a, 953b and 953c of the Code of Civil Procedure. (Stats. 1907, p. 750.) The appeal is taken under new sections 941a, 941b and 941c. (Stats. 1907, p. 753.) Some interesting questions of practice arising under these sections are presented by respondents in their objections to the review of alleged errors, which we prefer not at this time to take up. We invite attention, however, to the closing paragraph of section 953c, which reads: “In filing briefs on said appeal the parties must, however, print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court.” Whatever motive of utility or economy suggested these new sections to the codes, it is quite clear to our minds that the

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legislature did not intend to require the reviewing court to grope through an unprinted transcription of the phonographic report of the trial to find the testimony and documents relied upon by the parties, or that it would be sufficient compliance with the statute for the parties to indicate in their briefs the portions of the record relied on by simply citing the page of this transcription where such portions may be found. If the legislature had intended to substitute such a record for the printed record, hitherto required, no such provision as we have quoted would have been placed in the section. Appellant has in a measure complied with the statute, but respondents not at all, and we might with propriety refuse to examine the transcript in aid of respondents. As the record is not of much length, and the issues are by no means complicated, we have in this instance undertaken to follow the directions of the briefs to find the evidence relied upon.

The court made the following findings: 1. That in the month of July, 1906, defendants employed plaintiff to teach the grammar school in Redwood district for the period of four months of the school year ending December 21, 1906, at the agreed price of $60 per month; 2. That plaintiff received $240 “as payment for said teaching for said four months of school in said district”; 3. That plaintiff has not been damaged in any sum. As conclusion of law the court found that defendants are entitled to judgment.