Hertel v. Emireck

SLOSS, J.

This action was brought to foreclose a mortgage of real property, executed by the defendant, Summerland Realty Company, a corporation, to secure its note for three hundred dollars. Said defendant appeals from the judgment, which was in favor of the plaintiff, and from an order denying its motion for a new trial.

The answer admitted the execution of the note and mortgage, and nonpayment of the debt. It set up affirmative defenses based upon misrepresentations alleged to have been

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made by the plaintiff in the negotiations leading up to the giving of the note and mortgage. The court found that no such misrepresentations had been made. The evidence is not before us, and the appellant makes no point on its appeal from the judgment.

It is argued that a new trial should have been granted on the ground of newly discovered evidence. But the record contains no showing upon which this point can be considered. Copies of certain affidavits are embodied in the printed transcript. But these papers are not authenticated, either by incorporation in a bill of exceptions or under Code of Civil Procedure, section 953a. They cannot, therefore, be considered here. (Supreme Court Rule XXIX, [160 Cal. lvi, 119 Pac. xiv];

Herrlich

v.

McDonald,

80 Cal. 472, [22 Pac. 299];

Von Glahn

v.

Brennan,

81 Cal. 261, [22 Pac. 596] ;

Melde

v.

Reynolds,

120 Cal. 234, [52 Pac. 491] ;

San Diego Sav. Bank

v.

Goodsell,

137 Cal. 420, [70 Pac. 299].)