Sandoval v. Salazar

STURTEVANT, J.

The plaintiff brought an action in conversion against the defendant; he obtained a judgment, and thereafter he moved for a new trial and the motion was denied and he also made a motion to vacate the judgment and that motion was denied. After the judgment was entered and before the motion for a new trial was ruled on the trial court made an order that a certain stipulation and the report of a referee should be filed as of May 18, 1921, one week before the judgment was ordered. The defendant served a paper purporting to be a notice of appeal from each and all of said determinations, including the judgment and each of said orders. The appeal was taken under the provisions of section 953a of the Code of Civil Procedure. The appellant has brought up the clerk’s transcript, but has not brought up a transcript of the reporter’s notes or any paper purporting to be a bill of exceptions. On the fifth day of January, 1921, Carroll Allen, Esq., as attorney for plaintiff, and Frank P. Jenal, Esq., as attorney for defendant, entered into a stipulation,

[757]

“Whereas the issues of fact raised by the complaint and answer in this case requires the examination of long accounts on both sides, and whereas, the parties hereto desire a reference made to enable the court to determine said action as provided for in sections 638 and 639 of the Code of Civil Procedure of the state of California; now therefore, it is hereby stipulated that an order may be entered herein appointing W. J. Palethorpe as referee to hear and report upon the facts involving such accounting so raised by the complaint and answer herein.” On that date there was indorsed on the foot of said stipulation the following: “So ordered. John W. Shenb, Judge. January 5, 1921.” The paper was filed May 18, 1921. On June 27, 1921, an order was made as follows: “It appearing to the court that the stipulation for the order of reference herein and the order of reference based thereon, together with a report and’ findings of the referee were filed with the clerk of this court on May 18, 1921, and that by an oversight the same bear no filing date or mark of said clerk, and that the same have not been formally filed; It is hereby ordered that the clerk is, be, and is hereby directed to file said stipulation, order of reference and said report and findings of the referee as of date May 18, 1921.” A report of a referee is set forth in the transcript and is marked filed May 18, 1921. On May 3, 1921, the same attorneys entered into a stipulation filed on that day which provided among other things, “That each of said parties waives his right to appeal from the findings of the said referee and the judgment entered herein.” The judgment entered May 25, 1921, contains the following recitals: “The issues of fact in this case having been referred to W. J. Palethorpe and said referee having heard evidence thereon and having filed his report herein, and it having been stipulated by the parties to this action that the same should be accepted as final, and findings having been waived by stipulation and said matter coming on regularly to be heard this day upon motion of Carroll Allen, Esq., attorney for plaintiff, etc.” The appellant vigorously attacks the above stipulations. In making his attacks he has not followed any rule of practice that authorizes him to have a hearing in this court. Secondly, even though he had done so as a matter of substantive law his attack is without merit. Addressing ourselves