Adjustment Corp. v. Hollywood Hardware & Paint Co.

YORK, P. J. — On May 31, 1935, the respondent, as assignee of the American Wholesale Hardware Company, brought action upon a common count to recover for goods, wares and merchandise furnished and delivered within four years next preceding the commencement of said action at the special instance and request of the defendants, and for which they promised and agreed to pay the sum of $12,201.28. A general and special demurrer to the complaint was sustained with leave to amend, whereupon respondent filed its first amended complaint alleging that said goods, wares and merchandise were furnished and delivered to the defendants within the two years next preceding the commencement of said action. A general demurrer was thereupon interposed by the appellant Beatrice M. Stuart which was overruled; whereupon she filed her answer denying generally and specifically each and every allegation of the “complaint as amended by an amendment thereto”, but admitting that she had not paid all of her indebtedness to respondent’s assignor.

When the matter came on for trial on August 25, 1937, the court granted respondent’s motion for judgment on the pleadings to which appellant interposed no objection or defense, and subsequently judgment was entered in respondent’s favor for the sum of $13,371.27. This appeal from said judgment is presented on the judgment roll alone, upon the ground that for the purposes of the motion (for judgment on the pleadings) the truth of all the denials and allegations in the answer is admitted, and since the answer herein denied all the allegations of the complaint and the amendments thereto, the court erred in granting said motion.

Respondent urges in its brief that the judgment herein appealed from was rendered “under an oral stipulation en[568]téred into in open court after discussion of the merits of the case between the respective counsel, and that the attorney for the defendants and appellant further confirmed this oral stipulation and agreement before the filing of the judgment”.

In support of this contention, respondent has filed in this court an affidavit of the trial judge which is here made the subject of a motion to strike by appellant, on the ground that it is “incompetent, irrelevant and immaterial and not a part of the record of this case and has not been' certified . . . so as to make it a part of the record on appeal”.

Since it is true that the affidavit which was filed in this court purporting to state facts affecting the judgment is not a part of the judgment roll and consequently may not be considered on this appeal (Rubenstein v. Bank of America etc. Assn., 29 Cal. App. (2d) 501, 502 [84 Pac. (2d) 1056], citing section 670, Code Civ. Proc.; State Bank of Lansing v. McLaury, 175 Cal. 31, 34 [165 Pac. 7] ; E. A. Strout Western Realty Agency, Inc., v. McCloud, 29 Cal. App. (2d) 400 [84 Pac. (2d) 533]; 2 Cal. Jur. 526, sec. 263); the motion of appellant to strike the aforesaid affidavit from the record is granted.