Oppenheim v. Reiter

WHITE, P. J. Respondent moves to dismiss the appeal herein on the ground that no record on appeal has been prepared or filed. (Rule 10(a), Rules on Appeal.)

The action with which we are here concerned was commenced by plaintiff (petitioner herein) against defendant [546]and one I. H. Goodley to set aside a homestead and alleged fraudulent encumbrance of debtors’ assets. The relief prayed for is that a purported declaration of homestead, dated January 27, 1949, by the defendant, I. H. Goodley, be declared null and void as against the plaintiff, or partially so, insofar as the residence, separate from the defendant, is concerned; that the purported mortgage, dated June 2, 1949, by defendant, I. H. Goodley, in favor of defendant, Clara Reiter, and recorded on April 24, 1950, be declared fraudulent and void as against the plaintiff; that a receiver of all the property and effects of the defendant, I. H. Goodley, which he had at the time of the said encumbrancing by mortgage to the defendant, Clara Reiter, or at any time thereafter, be appointed; that the defendants, I. H. Goodley and Clara Reiter, be adjudged to account for all the property received by them under the purported mortgage and note, and for all proceeds arising from any sale of such property, and deliver the same to such receiver; that the defendants, I. H. Goodley and Clara Reiter, be in the meantime enjoined from disposing of any of said property, or paying away any of the proceeds thereof, or in any way interfering therewith; that the said receiver be directed to sell the said property, or so much thereof as may be necessary, and to pay the plaintiff out of the proceeds of said property the judgments aforesaid, and the costs of said action, and hold the balance subject to the order of the court.

On March 22, 1955, judgment was entered for plaintiff against both defendants who duly filed their motions for a new trial. On April 15, 1955, motion for a new trial was granted as to defendant Goodley and denied as to defendant Clara Reiter. On May 17, 1955, the latter filed her notice of appeal from the foregoing judgment. On May 26, 1955, defendant Reiter filed notice under rule 7, Rules on Appeal, to proceed on appeal by a settled statement and on June 17, 1955, a proposed settled statement was filed. On June 29, 1955, plaintiff (petitioner herein) filed objections and amendments to the proposed settled statement. Defendant Clara Reiter on July 13, 1955, filed “objections to the objections and amendments to the settled statement.”