Taylor v. De Vaughn

HAZLETT, J.,

pro

tem.

Defendant appeals from a judgment against him and from an order denying his motion for a new trial. The order denying the new trial is not appealable (Code Civ. Proc., see. 963).

Plaintiff sued as mother of her minor son, and she alleged that she was damaged by reason of malpractice on the part of defendant, a physician and surgeon, in failing to give the minor the usual and necessary surgical care after he reduced a fracture of the minor’s left femur.

A companion action was brought against defendant by the minor for damages he alleged he suffered by reason of the alleged malpractice. Counsel for the respective parties in their briefs state that the action by the minor was consolidated and tried with this action in the trial court pursuant to a stipulation and order of court thereon providing for the consolidation and that the evidence received should be used in each case so far as applicable. Separate findings and judgment were given in each action. Defendant appealed separately from the judgment and from the order of the trial court denying his motion for a new trial in the action by the minor. That appeal is entitled

“Robert G. Taylor

v.

De Vaughn”

and is numbered Civil No. 4777,

ante,

p. 318 [266 Pac. 960].

The only portions of the record certified to this court in this appeal are those set out in the typewritten clerk’s transcript which contains the judgment-roll, defendant’s notice of intention to move for a new trial and order denying the motion, notice to the clerk to prepare a transcript as provided in section 953a of the Code of Civil Procedure, notice of appeal, and an

ex parte

order of the trial conrt to the effect that the action by the minor be consolidated with this action for the purposes of appeal so that both appeals may be considered together.

A typewritten reporter’s transcript of the phonographic report of the trial was filed in the appeal in the minor’s case, and appellant requests this court to consider that transcript as the reporter’s transcript in this appeal, but neither appellant nor respondent printed in their briefs or in any