Fagan v. Carty

Paterson, J. This is an action brought under the provisions of section 738 of the Code of Civil Procedure, to determine the rights of the parties to the real estate described in the complaint. The court found that the plaintiff is not the owner of the property, or any part thereof, and “ that the defendant was, at the time of the commencement of this action, and had been for a long time before, and now is, the owner of said land, and the whole thereof.” These findings are as broad as the issues, and are sufficient. The evidence shows that the land in dispute is a portion of the lauds which were conveyed by act of Congress, passed July 23, 1866, to the city of Benicia, in trust for the parties who were, upon the passage of the act, in the bona fide occupancy thereof; and that, in pursuance of said act of Congress, the trustees of Benicia conveyed the land to respondent by deed dated April 29, 1871. The only evidence in the statement tending in any respect to show that the plaintiff ever acquired any title is the testimony of the plaintiff that he “purchased the propert}' described in the complaint [353]at constable’s sale on the fifth day of April, 1870.” Appellant, realizing the insufficiency of his statement to present the merits of his case on appeal, has printed in the transcript, immediately following the statement, a transcript of the official reporter’s notes of the evidence and proceedings, duly certified by that officer, and now asks the court to consider the same upon his suggestion of a diminution of the record. But manifestly we have no right, upon such a suggestion, to add to the statement any of the evidence proposed. The code prescribes a plain and simple method of securing a statement of the evidence and proceedings, and rule 12 of this court is not intended to relieve those who, through ignorance, negligence, or mistake, have failed to procure from the trial judge a full and correct statement of the case.

Judgment and order affirmed.

McFarland, J., Works, J., Sharpstein, J., and Searls, C. J., concurred.

Thornton, J., concurred in the judgment.

Rehearing denied.