Union Flower Market, Ltd. v. Southern California Flower Market, Inc.

SEAWELL, J. This is an appeal from a judgment on the pleadings in favor of defendants.

The defendants contend that the appeal should be dismissed or the judgment affirmed for failure of appellant to present a proper record on appeal. Section 950, Code of Civil Procedure, provides that on appeal from a final judgment the appellant must furnish the court with a copy of the judgment roll, certified by the clerk or the attorneys (sec. 953, Code Civ. Proc.). By section 670, Code of Civil Procedure, it is provided that the judgment roll includes the pleadings. The answer is not included in the record filed in this court in the instant case. But where judgment has been entered for defendants on the pleadings the sole question is whether the complaint states a cause of action. (Hibernia Sav. & L. Soc. v. Thornton, 117 Cal. 481 [49 Pac. 573]; Shanley v. American Olive Co., 185 Cal. 552 [197 Pac. 793]; Elmore v. Tingley, 78 Cal. App. 460 [248 Pac. 706].) The appeal will not be dismissed for failure to include in the record on appeal a part of the judgment roll not material to determination of the appeal. (Paige v. Roeding, 89 Cal. 69 [26 Pac. 787].)

The judgment for defendants on the pleadings, according to its recitals, was entered upon “the complaint as amended by interlineation”. On the complaint as copied in the record herein the interlineations appear as interlineations, bearing the initials of the trial judge in the margin. The clerk’s certificate, by which the papers constituting the judgment roll or clerk’s transcript are authenticated (sec. 953, Code Civ. Proc.), recites that said transcript contains a full, true and correct copy of the complaint and other instruments contained therein “together with the endorsements on said documents as the same now appear on file and/or of record in this office”. The amendments by interlineation are endorsements on the complaint as originally filed.

It is true that in its notice to the clerk to prepare the transcript the plaintiff asked that there be included in the [674]transcript “plaintiff’s complaint filed herein on April 23, 1934”, without adding the words “as amended by interlineation”. But it affirmatively appears from the record that the complaint included therein is the complaint as thus amended upon which judgment was entered.

The clerk included in his transcript a copy of the minute order granting the defendants’ motion for judgment on the pleadings. This order is not part of the judgment roll as defined by section 670, Code of Civil Procedure, and hence could not be authenticated by the clerk or properly included in the clerk’s transcript (Martin v. Pacific Elec. co., 195 Cal. 544 [234 Pac. 321]; Totten v. Barlow, 165 Cal. 378 [132 Pac. 749].) But since it appears affirmatively from the judgment that said judgment was entered pursuant to the granting of defendants’ motion, it is not necessary that the order itself be included in the record on appeal. (Weeks v. Garibaldi South Gold Min. Co., 73 Cal. 599 [15 Pac. 302].) We conclude that without the minute order plaintiff has presented a sufficient record for determination of the appeal herein as a judgment roll appeal. Furthermore, the clerk’s certificate is followed by a certificate of the trial judge, which authenticated the minute order. (Pierce v. Works, 171 Cal. 684 [154 Pac. 852]; Lake v. Karris, 198 Cal. 85 [243 Pac. 417]; Beck v. Barnes, 129 Cal. App. 187 [18 Pac. (2d) 749].)