Weaver v. Fickett

THE COURT.

This is a motion to affirm the judgment upon the ground that no reporter’s transcript has been settled, certified, or filed upon this appeal, the appeal having been taken pursuant to the provisions of Code of Civil Procedure, section 953a et seq. The record upon appeal now on file in this court consists of a “clerk’s transcript,” containing a certified copy of the judgment-roll,- the notice of appeal, and the notice to the clerk to prepare transcript. There is also a “supplemental clerk’s transcript,” containing certified copies of a bill of particulars, demand for bill of particulars, order appointing referee, report and finding of referee, exceptions to the report of referee and of certain other documents on file in the office of the clerk of the trial court. The findings of the referee were not included in the “judgment-roll” as the same was made up by the

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clerk of the trial court. They should have been so included (Code Civ. Proc., see. 670), and doubtless may he regarded for the purposes of this appeal as a part of the judgment-roll. The absence in the record upon appeal of a reporter’s transcript or hill of exceptions is not in and of itself a ground for affirmance of the judgment. The transcript of a judgment-roll, together with notice of appeal, is a sufficient record upon appeal if the appellant elects to prosecute his appeal upon such a record. If the grounds for appeal appear in the judgment-roll no bill of exceptions or reporter’s transcript is required. (2 Cal. Jur., p. 527.) Appellants’ opening brief is on file herein and it appears therefrom that they urge various points upon this appeal which cannot be considered in the absence of reporter’s transcript, but they also make the points that the judgment appealed from is not supported by the findings and that the complaint herein does not state a cause of action. These points may be considered and determined upon an inspection of the judgment-roll alone. The motion to affirm must, therefore, be denied, because a consideration and determination of these points at this time would involve in effect a determination of the merits of the appeal, and would effect an unwarranted advancement of this case.

(Jenks

v.

Lurie,