Rogers v. Parish (1868) · DecisionDepot

Rogers v. Parish

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1868Published

Before: Rhodes

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Holding. The court held that the appeal was fatally defective due to the lack of a settled statement of evidence and that the order of restitution was improper because the parties involved were not bound by the underlying judgment.

Issues

Whether the absence of a settled statement of evidence precludes appellate review of documentary evidence.
Whether non-parties to an action are bound by a judgment or amenable to a writ of restitution issued upon that judgment.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“This defect is fatal to the appeal.”

“Neither Lyons nor his tenant, Edgar "W. Parish, were parties to the action in the County Court of Rogers v. Parish, nor did either of them enter upon the premises under Isaac Parish, the defendant.”

Synopsis

Objection to Record on Appeal, when Waived.—Where, on appeal from an order subsequent to final judgment, objections to the consideration of certain affidavits contained in the record were not taken as required by Rule XIII of this Court, such objections will be deemed waived ¿ but the ruléis otherwise in respect to the subject matter of a statement on appeal contained in such record, where no statement embodying the same, duly settled, certified, or agreed to, as required by law, existed in the Court below.

Who cannot be Dispossessed under Writ op Restitution.—Where L. and P. entered into possession of certain lands under neither of the parties to an action for the possession of the same, and were not parties to said action, they cannot be dispossessed under a writ issued on a judgment rendered for plaintiff therein.

By the Court, Rhodes, J. : There is nothing in the transcript to identify the affidavits as those read on the hearing of the motion; but objection on that ground is waived by the failure to present it according to Rule XIII of this Court.

The judgment roll, the writs, and other documentary evidence mentioned in the transcript cannot be considered on this appeal, because there is no statement, nor anything purporting to be a statement, of the evidence, settled and certified or agreed- to, as is required when the case is presented upon other evidence besides the affidavits. (Wetherbee v. Davis, 33 Cal. 549.) Objection on this ground is not required to be taken under Rule XIII, for, if it had been taken, the defect could not have been remedied by the appellant. He could not have supplied the omission had it been pointed out, because there was no statement in the Court below. This defect is fatal to the appeal.

The appeal was taken before the order was made. The order entered by the Clerk, that Lyons he restored to the possession, was unauthorized; and the order which was made by the Court, directing Edgar W. Parish as the tenant of Lyons to be restored to the possession, was made after the appeal was taken. That order is the only one that can be regarded as the order of the Court.

Waiving these objections, the appellant must fail on the [129]merits. Neither Lyons nor his tenant, Edgar "W. Parish, were parties to the action in the County Court of Rogers v. Parish, nor did either of them enter upon the premises under Isaac Parish, the defendant. They were not, therefore, bound by the judgment in that action, nor amenable to the writ of restitution issued upon the judgment. (Wattson v. Dowling, 26 Cal. 124; Long v. Neville, 29 Cal. 135.)

Order affirmed.

Rogers v. Parish

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