Stoops v. Johnson

KNIGHT, J. Plaintiff appeals from a judgment entered in favor of defendants after trial on the merits, and the appeal is presented on a bill of exceptions; but plaintiff has not complied with the mandatory provisions of section 950 of the Code of Civil Procedure which require an appellant on an appeal from a final judgment to furnish the reviewing court with a copy of the judgment roll. Consequently, it is impossible to ascertain from the transcript, or for that matter from either of the briefs filed by the respective parties, the nature of the action, the relief sought, the defenses interposed, the issues tried and determined, or the form of the judgment rendered. Under well-settled rules an appeal may properly be dismissed by the court of its.own motion if the record fails to comply with legal requirements; however, con[200]sideration has been given to the points urged by plaintiff in support of the appeal, and it is apparent that no finding of error can be based thereon.

The evidence set forth in the bill of exceptions consists of the testimony given by the plaintiff and one of the defendants; also several documentary exhibits introduced by them; and the facts to be gleaned therefrom may be stated as follows: Joe E. Johnson and his wife, Zula Joyce Johnson, were the owners and holders of a trust deed dated December 30, 1936, covering real property belonging to the plaintiff Don Theodore Stoops, and given to secure the payment of a promissory note of even date therewith for the sum of $1,550. On April 15, 1937, the defendant Ernest R. Van Houten acquired said trust deed and note by transfer and assignment from the Johnsons as part payment in a real estate transaction which took place between the Johnsons and Van Houten. Some time thereafter, the date not appearing in the record, Stoops brought the present action against the Johnsons and Ernest R. and Doris IC. Van Houten, presumably to quiet title to the property, claiming according to Stoops’ testimony, that the Johnsons had given him an agreement to the effect that he was to pay them only $500, and that he, Stoops, had told Van Houten about the agreement before the latter acquired the trust deed and note. The agreement was never recorded, and while the bill of exceptions recites that it was introduced in evidence, no portion of its contents is set forth in the record, in substance or otherwise; nor is there anything in the record showing when it was made. Stoops claimed also in his testimony that he had tendered Mrs. Johnson $250, which she refused to accept, and that thereafter his attorney sent a letter to the Johnsons tendering $194 and informing them “that a promissory note was executed in their favor.” But there is nothing in the record showing when these asserted tenders were made, whether before or after Van Houten acquired the trust deed and note, or whether before or after the commencement of the present action.