Silver v. Bank of America National Trust & Savings Ass'n

TUTTLE, J. The following judgment was entered in the above-entitled action:

“This action came on regularly for trial on the 29th, 30th, 31st of July, and 1st, 2nd, 5th, 6th, 7th and 8th day of August, 1940. The said parties appeared by their attorneys, Messrs. Burke & Rawles, Esq., counsel for plaintiff, and Messrs. Preston & Gibson for defendant. A jury of twelve persons was regularly empanelled and sworn to try said action. Witnesses on the part of plaintiff and defendants were sworn and examined. After hearing the evidence, the arguments of counsel, and instructions of the court, the jury retired to consider of their verdict, and subsequently returned into court, and, being called, answered to their names, and say: ‘We, the Jury, find in favor of plaintiff, Louis L. Silver, against defendants on Count I of the complaint for the sum of $250.00 compensatory damages and no punitive damages.’

“ ‘We, the Jury, find for the defendant, Bank of America National Trust & Savings Association, a corporation, on Count II of said complaint’. ‘We, the Jury, find for the defendant, California Lands, Inc., a corporation, on Count II of said complaint’. ‘We, the Jury, find in favor of plaintiff, Louis L. Silver, against the defendants on Count III of the complaint for the sum of $1881.60 compensatory damages.’

[837]“And whereas, a motion for judgment, notwithstanding the verdict having been made and granted as to Count I of the complaint, and the court having ordered judgment entered in favor of defendants under said Count I of the complaint,

“Wherefore, by virtue of the law, and by reason of the premises aforesaid, it is ordered, adjudged and decreed that said plaintiff, Louis L. Silver, have and recover nothing from defendants, Bank of America National Trust & Savings Association, a corporation, and California Lands, Inc., a corporation, under Counts I and II of said complaint, and that said plaintiff, Louis L. Silver, have and recover from said defendants, Bank of America National Trust & Savings Association, a corporation, and California Lands, Inc., a corporation, the sum of One Thousand Eight Hundred Eighty-one and 60/100 ($1881.60) Dollars, together with his costs and disbursements incurred in this action, amounting to the sum of $466.85 Dollars.”

Thereafter, both parties moved for a new trial. Plaintiff’s motion on count I was denied, and his motion on count II was granted. Defendants’ motion in respect to count III was denied. Defendants then gave notice of appeal on October 21, 1940, from the order granting the motion for new trial on count I, and from the judgment on count III, and on the following day its request for a transcript under section 953a of the Code of Civil Procedure was filed, and an order made pursuant thereto. On December 11, 1940, transcripts of the clerk and reporter were filed in this court (Pile No. 3, Civ. 6563). On January 17, 1941, plaintiff filed in this court a clerk’s transcript pursuant to his notice of appeal. No request for a transcript under said section was ever made by plaintiff, and no order for said transcript was ever made.