Hanna v. De Garmo

ANGELLOTTI, J.

This action was brought by plaintiff, a judgment creditor of defendant G. S. De Garmo, to subject to plaintiff’s claim property alleged to have been fraudulently conveyed by said defendant to his wife, defendant Mamie De Garmo, and by him and his said wife to his brother, defendant W. I. De 'Garmo. The defendant Southern California Savings Bank, it was alleged in the complaint, claimed some interest in the property. The defendants having answered, a trial was had, and judgment was finally entered in favor of plaintiff as against G. S. De Garmo for $1,754, and interest, As to defendants Mamie De Garmo and W. I. De Garmo, judgment of nonsuit was given, and it was adjudged that plaintiff take nothing as to the Southern California Savings Bank. The plaintiff appeals from the judgment and an order denying her motion for a new trial. No complaint is made as to the judgment, except in so far as it denies plaintiff relief against Mamie De Garmo and W. I. De Garmo. As to those defendants, the judgment directs a nonsuit. The record is otherwise silent as to any motion for nonsuit made by said defendants, order of court thereon, or exception to such order. A court has authority to grant a judgment of nonsuit only

[174]

in certain cases specified by law. (Code Civ. Proc., sec. 581.) Every presumption is in favor of the judgment. Nothing appearing in the record inconsistent with that conclusion, it is to be presumed on this appeal that a motion for a nonsuit was regularly made by such respondents and granted by the court. An order of nonsuit as to these respondents having been made, leaving other defendants still before the court, it was proper for the court in its final judgment to include a judgment of nonsuit as to such respondents

(Kennedy

v.

Dusenbery,

116 Cal. 124, 126), and such provision in the judgment, it must be presumed in favor of the judgment, followed an order granting the nonsuit, made on the trial. The record fails to show that any exception was taken to the order granting the nonsuit. It is thoroughly settled that this court will not review the action of the trial court in granting a motion for nonsuit where no exception has been reserved to the ruling of the court. The ruling of the trial court upon such a motion presents a question of law, and must be both excepted to and specified as an error of law occurring at the trial, and the exception must appear in the stating or substantive part of the bill of exceptions or statement. The bill must affirmatively show that the ruling assigned as error actually took place at the trial and was excepted to.