Warren v. Hopkins
Before: Harrison
Synopsis
Appeal — Motion to Dismiss — Supplying Defects in Transcript. — - Where a motion is made to dismiss an appeal upon the ground that the transcript is not properly authenticated, and that it fails to show that the notice of appeal had been served upon adverse codefendants, appellant may, under rule XV of the appellate court, which is to be liberally construed for the purpose of enabling the appellant to present his appeal upon the merits, remedy any defects or omission of the transcript, and may supply at the hearing the proof of service of the notice of appeal.
Id.—Notice of Appeal—Proof of Service—Practice—Jurisdiction.— The better practice is to have the proof of service of the notice of appeal made a part of the record in the court from which the appeal is taken, and, in such case, the record, when properly certified to this court, becomes conclusive evidence of the facts therein stated; but the jurisdiction of the appellate court does not depend upon proof of the fact of service being contained in the transcript, but upon the fact that the notice of appeal has been properly served; and the appellant may file in the appellate court either original proof of the service, or a certificate of the clerk of the court below that such proof has been made and filed in that court.
Id.—Lien upon Lot for Grading—Construction of Code.—The lot upon which a lien is authorized by section 1191 of the Code of Civil Procedure for grading or other improvement of the lot, is not limited to any artificial subdivision or official designation of a lot upon a map, but includes in its meaning whatever territory is caused by the owner thereof to be graded under, a single contract.
Id.—Contract for Grading Streets—Priority of Mortgage—Grading OF Block.—Where a contract for grading streets in front of a block is made subsequent to the recordation of a mortgage upon the block, the lien for the grading of the streets is subordinate to the lien of the mortgage, though the mortgage may be subject to a lien for the grading of the block.
Id.—Findings—Uncertainty—Construction in Support of Judgment. Any uncertainty in the findings is to be construed so as to support the judgment rather than to defeat it; and a finding that a certain amount was unpaid under contracts for grading blocks and streets surrounding the same, and does not find that any portion of the unpaid sum was for grading the streets, must be read as a finding that the entire amount is due upon the contract for grading the blocks as against the holder of a mortgage upon one of the blocks, and where such mortgagee has not assigned any error in the finding, it must be presumed to be authorized by the evidence, and to be of such a character as to sustain the judgment.
Harrison, J. The plaintiffs brought an action upon a contract made by them with the defendant Hopkins, for grading outside land blocks 664 and 665 in San Francisco, and to enforce a lien upon the land for such grading, and subsequently brought another action upon a contract made by them with the defendants Hopkins and Bowie, for grading the streets in front of said blocks, and to enforce a lien therefor upon the same land. The appellant, Loupe, held a mortgage upon [508]block 664, executed to him. by the defendant .Hopkins subsequent to the date of the contract for grading the blocks, and, for that reason, was made a defendant in the actions, and filed answers therein, setting up his mortgage lien, and, in the latter action, filed a cross-complaint against the plaintiffs and Hopkins and Bowie for the" foreclosure of his mortgage, claiming that the lien thereby created was superior to the lien of the plaintiffs. To this cross-complaint the plaintiffs filed an answer denying this priority of lien, and alleging that their claim for grading constituted a lien prior to that of the mortgage. Before the actions came on for hearing, judgments of dismissal were entered by consent of all parties as to block 665, and thereafter, upon an order of the court, made by consent of all the parties, the actions were consolidated and tried together. Prior to the trial Hopkins and Bowie stipulated with the plaintiffs as to the amount due and unpaid upon their contracts with them, and that judgment therefor might be taken. The cause was thereafter tried between the plaintiffs and the appellant upon the issue as to the priority of lien, and findings of fact were made and filed, and judgment entered declaring the lien of the plaintiffs superior to that of the appellant. The appellant moved for a new trial upon the ground that the evidence was insufficient to sustain certain findings of fact. His motion was denied, and from this order, and also from the judgment, he has appealed.
1. A motion was made on behalf of Bowie and Hopkins to dismiss the appeal upon the ground that the transcript filed herein was not authenticated, either by the attorneys or by the clerk of the superior court, and that it failed to show that the notice of appeal had been served upon them. Rule XV of this court provides that when notice has been given to the appellant of any objection to the transcript affecting the right of the appellant to be heard, “ it shall be the duty of the appellant to present and file at the hearing of the cause such additional record, if such there be, to remove or [509]
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