Huffaker v. Donnelly

SHAW, J.

The appeal of Huffaker is from the decree of distribution.

The will of the decedent directed the sale of a certain lot and the payment of one-half of the net proceeds thereof to one A. W. Gamble. Huffaker claims this one-half interest as assignee of said Gamble. By the decree appealed from this half was adjudged to be the sum of $819.11, and the further direction was made that there be deducted therefrom the sum of $458.60, the amount of two certain judgments in favor of the estate against said Gamble, rendered prior to the asserted transfer to Huffaker, and that the balance of $360.51 be dis

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tributed to Gamble, subject to the conflicting claims of Fred Schell, administrator of the estate of George W. Schell, deceased, and the appellant Huffaker, both of whom, it seems, had appeared at the hearing and claimed said balance.

The appellant contends: 1. That the court erred in computing the amount of the net proceeds of the lot applicable to the legacy to Gamble, making it $257.85 less than the true amount; 2. That the court erred in deducting one of the judgments from the half of the proceeds going to Gamble, being a judgment for $143 recovered in. a justice court by the administrator of the estate against Gamble; and 3. That the court erred in providing that the final balance should be distributed subject to the conflicting Claims of Schell and Huffaker, and herein that the Schell claim was upon a judgment rendered after the assignment to Huffaker.

1. The record furnishes us no means of ascertaining whether the computation of the amount of the net proceeds of the lot applicable to the legacy was correct or not. The transcript on appeal was prepared under the method prescribed by section 953a of the Code of Civil Procedure. This section appears to be a pitfall for the unwary. The appellant gave the notice to the clerk provided for in that section, requesting that a transcript of certain specified papers and of the testimony of Huffaker, Snook, and Donnelly be made for use on the appeal. The clerk made and certified a transcript containing copies of the papers designated. It does not appear that the appellant gave any security for the cost of the transcript as required by section 953b of the Code of Civil Procedure. No transcript of the testimony was ever made or settled by the judge. The record on appeal contains no bill of exceptions, nor any statement whatever purporting to contain the evidence, if any, given at the hearing. Consequently, we cannot take notice of the contents of papers copied in the transcript, except those which, under section 953a, may be authenticated by the clerk alone. We can consider only the papers which, on an appeal from an order of this character, would b.e the equivalent of a judgment-roll in an ordinary civil action. These would be the petition for distribution, the opposition thereto, if any written opposition was filed, the counter petitions filed, if any there were, or any other papers in the nature of pleadings filed at or before the hearing pur