Paige v. Roeding

Garoutte, J. — This was an action to recover certain sums of money from the defendants, Roeding, Perkins, and Richardson, as stockholders of the Wheeler Fruit Packing Company, a corporation. Plaintiffs appealed from the judgment rendered by the trial court, and the case is now before us upon a judgment roll containing no bill of exceptions, but consisting simply of the pleadings, findings and judgment. Subsequently to the filing of the transcript, respondents brought to this court another set of findings and another judgment made and entered in the same cause several months prior to the filing of the findings and entry of the judgment found in the transcript, and now assert them to be the true findings and judgment, and ask that they be inserted in the transcript as part of the judgment roll and in lieu of the judgment and findings now therein contained. Plaintiffs have appealed from the judgment set out in the transcript, and if that judgment constitutes no part of the judgment roll, but is to be displaced by this prior judgment, then this appeal must fall, for it will have no foundation upon which to rest.

This brings us to the question, What constitutes the judgment roll in this case? In other words, which set of findings and which judgment form part of the judgment roll? — for the statute clearly contemplates that there shall be but one judgment and one set of findings incorporated therein. Upon an appeal from a judgment, this court is not bound by the papers found in the transcript which counsel claim constitute the judgment roll, neither is it foreclosed by the certificate of the clerk of the trial court that certain papers [391]therein enumerated form the judgment roll. If opposing counsel contend that the judgment roll presented to this court is defective or lacking in material parts, he is entitled to bring such omitted documents, properly certified, before this court, and it then becomes the duty of the court to determine, from all the record before it, what constitutes the judgment roll in the case.

The matter here to be determined presents but little difficulty; we have nothing before us but the two judgments of the court, and the later in point of time must-prevail, and in the absence of some further showing, by .bill of exceptions or otherwise, must be deemed the true and final judgment in the case. As was said in Caruthers v. Hensley, 90 Cal. 560: “ If any matters could have been presented to the court below which would have authorized the entry of this judgment, it will be presumed on this appeal, in support of the judgment, that such matters were so presented, and that, the judgment was entered in accordance therewith.” In Parker v. Altschul, 60 Cal. 380, it is said: “ All presumptions are in favor of the correctness of the proceedings of courts of general jurisdiction, and as the consent of the defendants would have justified the order of the court, we must presume that such consent was given, there being nothing in the record to show that it was not.” Circumstances may have arisen wherein the trial court would have been justified, under the law, in setting aside the first findings and judgment, and in filing the second findings and judgment; and with no showing to the contrary, we must assume that such circumstances did arise. Under the present showing, the judgment in the transcript is as much a part of the judgment roll as the last amended complaint or answer would be a part of the judgment roll. This court would assume, in the absence of something to the contrary, that the last pleading filed wás regularly filed, and should be the pleading incorporated as a part of the record. Upon an examination of the findings and conclusions of law set out in the transcript, it is apparent that they form the foundation for the