Santa Ana Mortgage & Investment Co. v. Ernest Rurup Estate

BARNARD, P. J. In this action on a promissory note judgment was entered in favor of the plaintiff on April 30, 1937. A memorandum of costs and notice of entry of judgment were mailed to counsel for the defendants on the same day, and were filed with an affidavit of mailing. On May 10, 1937, the defendants secured and filed an ex parte order purporting to stay proceedings for a period of thirty days. On June 11, 1937, the defendants served and filed a notice of intention to move for a new trial, which was noticed and set for July 2, 1937. On that day the motion was denied on the ground that the court had no jurisdiction to grant the same. On July 15, 1937, the defendants filed a notice of motion to vacate and set aside the order denying the motion for a new trial. This motion was heard and denied on July 23, 1937. On August 20, 1937, the defendants filed a notice of appeal from the order denying the motion to vacate and set aside the order denying the motion for a new trial.

After the opening brief was filed the respondent filed this motion to dismiss the appeal or to affirm the judgment on the ground that no record had been brought up, by bill of ex-[447]eeptions or otherwise, showing what papers, evidence or affidavits were before the trial court on the hearing of the motion, as required by rule XXIX of the rules governing this court, and on the further ground that said appeal is unsubstantial and taken for the purposes of delay only.

A clerk’s transcript was filed containing the judgment roll, notice of intention to move for a new trial, minute order denying the same, memorandum of costs and notice of entry of judgment with affidavit of mailing, order staying execution, and notice of appeal from order denying the motion to set aside the order denying the motion for a new trial. Thereafter, the appellants filed what is denominated a “Clerk’s Supplemental Transcript”, marked as “prepared by” counsel for the appellants, containing a certificate of the county clerk that “the foregoing Notice of Motion to Vacate and Set Aside Order Denying Motion for a New Trial, Affidavit of Merits and of Facts on Motion to Set Aside Order Denying Motion for New Trial”, and t"wo other affidavits are correct copies “of the originals on file in my office”. No transcript or bill of exceptions showing what papers, evidence or affidavits were before the court or were used on the hearing of the motion which resulted in the order appealed from have been filed, and in connection with the present motion to dismiss or affirm there was filed the certificate of the clerk to the effect that no proceeding is pending for the preparation of a bill of exceptions or of a transcript.