State Bank of Lansing v. McLaury

California Supreme Court Apr 30, 1917 No. Sac. No. 2333. Sac. No. 2334.Published

Before: Sloss

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Holding. The court affirmed the denial of the motion to satisfy the judgment because the appellant failed to provide a bill of exceptions to authenticate the evidence used in the trial court and failed to request a reference or jury trial for the disputed facts.

Issues

Whether a trial court errs in deciding a motion to satisfy a judgment based solely on conflicting affidavits when no request for a reference or jury trial was made.
Whether an appellate court can consider affidavits not incorporated into a bill of exceptions when reviewing an order on a motion to satisfy a judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“He undertook, apparently, to present his motion for decision on affidavits, and, having so presented it, he cannot now insist that the court below should, of its own motion, have directed a procedure different from that which he himself initiated”

“we cannot, on an appeal from the granting or denial of a motion like the one here involved, consider affidavits or other evidence used in the court below, unless such affidavits or evidence be authenticated by incorporation into a bill of exceptions.”

Synopsis

Judgment—Motion fob Satisfaction—Conflicting Affidavits—Appeal.—Where a motion to satisfy a judgment and recall the execution, made under section 675 of the Code of Civil Procedure, is heard on conflicting affidavits and denied by the trial court, it cannot be said on appeal that the court erred.

Id.—Controverted Fact of Satisfaction—Reference to Jury—Failure to Request.—While it might be proper to remit the matter to an independent action or refer it to a jury, where the fact of payment of a judgment is disputed, the moving party is not in a position to question the court’s action in hearing his motion on affidavits, where he did not request a reference or a submission of the issue of fact to a jury, but presented his motion for decision on affidavits.

Id.—Insufficient Record on Appeal—Lack of Bill of Exceptions.— Where a transcript consists merely of copies of the complaint, the judgment, defendant’s notice of motion for satisfaction of judgment and recall of execution, a written motion, defendant’s affidavit, a counter-affidavit, an order denying the motion, and a notice of appeal, which papers were certified by the clerk as correct copies of the originals on file but not incorporated in any bill of exceptions, the record on appeal is insufficient under the rule of the supreme court.

Id.—Failure to Show Error—Presumption in Favor of Ruling.—It is incumbent upon the appellant to show error, and this he fails to do where he does not present to the appellate court the evidence on which the trial court acted; and in the absence of such evidence it will be assumed that the necessary evidence to sustain its order was presented to the lower court.

SLOSS, J.

Appeals in two cases are here presented. The plaintiff is the same in both actions. C. S. McLaury and Harry Thompson are defendants in the one action, and Mc-Laury is the sole defendant in the other. Except for this circumstance, and a difference in the amounts involved in the two cases, the facts are identical, and the two appeals have been submitted upon a single set of briefs. A brief statement of the facts in No. 2334 will illustrate the legal questions common to the two appeals.

The plaintiff brought an action against McLaury on a promissory note, and recovered judgment by default. More than a year after the entry of the judgment, McLaury gave notice that he would move the court for an order satisfying the judgment and recalling an execution issued thereon. The notice of motion was accompanied by the affidavit of McLaury in which he stated, in effect, that since the entry of the judgment, the plaintiff had come into the possession of money, sufficient in amount to cancel the indebtedness represented by the judgment. Said money was declared to be the proceeds of securities belonging to McLaury, and held by the plaintiff under an agreement that money collected thereon should be applied upon said indebtedness. The plaintiff filed an affidavit denying the holding of any securities for McLaury, or the collection of any money applicable to Mc-Laury’s debt. The court made an order denying the motion to satisfy the judgment and recall the execution. The appeal is from this order.

The motion was made under section 675 of the Code of Civil Procedure, which authorizes the court to order entry of satisfaction “whenever a judgment is satisfied in fact, otherwise than upon an execution.”

(Buckeye R. Co.

Kelly,

163 Cal. 8, [Ann. Cas. 1913E, 840, 124 Pac. 536].) The order is to be made only where the judgment has in fact been satisfied. In the case before us, the only evidence touching this vital question consists of affidavits which are in direct conflict. It is difficult to see, therefore, how it can be contended that the court erred in denying to the defendant the relief for which he asked.

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State Bank of Lansing v. McLaury

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Synopsis

SLOSS, J.

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