McKeon v. Sambrano

California Supreme Court Mar 30, 1927 No. Docket No. L.A. 9297.Published

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Holding. The court denied the motion to recall the remittitur, denied the motion to dismiss the appeal from the judgment, and affirmed the judgment on the grounds that the appeal was frivolous.

Issues

Whether the remittitur should be recalled based on an alleged fraudulent affidavit of mailing.
Whether an appeal from a judgment may be dismissed due to an incomplete reporter's transcript.
Whether the judgment should be affirmed on the ground that the appeal is frivolous.

Disposition. Judgment affirmed; motions denied.

Quotations verified verbatim against the opinion

“The appellant’s motion to recall the remittitur heretofore issued is therefore denied.”

“The appeal from the judgment having been taken under the alternative method may not be dismissed upon the ground that the "Reporter’s Transcript” is incomplete.”

“The appeal is clearly without merit and is a frivolous appeal. The judgment is, therefore, affirmed.”

THE COURT.

A summary statement of a few pertinent facts will be conducive to a proper understanding of the questions of law presented by these several motions. It appears that the appellant at one time had pending herein five appeals from as many orders entered by the trial court in this foreclosure proceeding. One of these several appeals was from the judgment and decree of foreclosure while the remaining four were from orders made and entered after said judgment. Upon the calling of the December calendar of this court the respondent made a motion, upon enumerated grounds, for the dismissal of all five of said appeals. The record indicates that the appellant failed to appear in opposition to said

[741]

motion and the same was thereupon granted as to the four appeals from the orders after judgment but denied as to the appeal from the judgment. At the next succeeding session of this court, held in March of this year, the respondent repeated his motion to dismiss the appeal from the judgment and, as stated above, also presented a motion for the affirmance of said judgment. The appellant, who appears herein

in propria persona,

was present in court upon the making of these latter motions and opposed the granting thereof. At this same time he made the motion, above referred to, for recall of the

remittitur

issued upon the earlier dismissal of the four appeals from the orders after judgment, urging in support thereof that he had not received notice of the making of the motion at the preceding session of the court and that the order of this court made at such time dismissing his said four appeals was secured by reason of fraud and imposition having been practiced by the respondent’s counsel in having filed herein a false and fraudulent affidavit of mailing.

[740]

Three motions are presented herein for determination. The respondent has made a motion to dismiss the appeal from the judgment and a motion to affirm said judgment. The appellant, while opposing these motions, presents on his own behalf a motion to recall the

McKeon v. Sambrano

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THE COURT.

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