Alexander v. Mayer

BARNARD, P. J. This is an action for damages to real property. Summons was served on the defendants on January 13, 1938, and their default was entered by the clerk on January 25, 1938. A judgment by default for the full amount prayed for was entered on February 4, 1938. On February 23, 1938, the defendants filed notice of a motion [159]to set aside and vacate the judgment taken under default together with an application for permission to file an answer and cross-complaint which, the application stated, was presented therewith. This motion and application were argued on February 28, 1938, and submitted to the court. On March 8, 1938, the court made an order granting the motion to set aside the default judgment and granting defendants “leave to file their answer and cross-complaint accompanying their application to set aside said default”. From that order, this appeal was taken by the plaintiff on January 4, 1940.

After a substitution of attorneys, the respondents moved in this court to dismiss the appeal and, in the event that motion should be denied, moved for a diminution of the record asking to have made a part of the record a certified copy of their verified answer and cross-complaint, which is alleged to have been filed in the trial court on February 23, 1938, to be now in the custody of the clerk of the trial court and to have been before the trial court when the order appealed from was made, but which was not included in the record presented to this court. In connection with the alternative motiop there is presented to this court, a photostatic copy of this answer and cross-complaint which shows that the same was served on the attorney for appellant on February 23, 1938, and which the clerk of the trial court has certified is a true and correct copy of the original on file in his office.

The only record filed in this court is a typewritten 11 Clerk’s Transcript on Appeal” which includes, among other things, in addition to the judgment roll, the notice of the motion to set aside the judgment and the application for permission to file an answer and cross-complaint, three affidavits in support of the motion to set aside the judgment, an affidavit in opposition to that motion, and two minute orders. The verified answer and cross-complaint which was served on February 23, 1938, and which is mentioned in the application for permission to file the same and in the order of the court which is appealed from, is not included in the so-called clerk’s transcript and was not among those documents mentioned by the appellant in his request to have a transcript prepared.