Citizens National Trust & Savings Bank v. Scott

FOURT, J. This is an appeal from a judgment entered after a trial by the court sitting without a jury wherein it was adjudged that appellant “has no right, title or interest in the sum of $6,125.82, now held by Bank of America National Trust and Savings Association in a purported joint tenancy bank account standing in the names of L. E. Scott or Evelyn T. Scott at its branch at Van Nuys, California.

“That plaintiff have and recover of and from defendant Bank of America National Trust and Savings Association, the sum of $6,125.82.1

Appellant prosecutes the within appeal on the clerk’s transcript. No reporter’s transcript or substitute therefor has been provided.

The gist of appellant’s first contention is that there is insufficient evidence to support the trial court’s findings of fact. This contention has no merit. It is fairly well established that where an appeal is taken on the clerk’s transcript and no reporter’s transcript or substitute therefor is furnished, the recitals in the judgment and in the findings of fact are deemed to be true and are binding upon the appellate court. (See Agnew v. Contractors Safety Assn., 216 Cal.App.2d 154, 163 [30 Cal.Rptr. 690]; Berg v. Investors Real Estate Loan Co., 207 Cal.App.2d 808, 813 [24 Cal.Rptr. 701]; O’Callaghan v. Southern Pac. Co., 202 Cal.App.2d 364, 368 [20 Cal.Rptr. 708]; Robert S. Bryant, Inc. v. Taber, 199 Cal.App.2d 884, 885 [19 Cal.Rptr. 150]; Chapin v. Gritton, 178 Cal.App.2d 551, 569 [3 Cal.Rptr. 250]; Seay v. Allen, 134 Cal.App.2d 440, 444 [286 P.2d 392].) Under the circumstances, no useful purpose would be served in setting forth the court's findings of fact.

Appellant’s second contention is that the trial court was divested of jurisdiction during the period of time when appellant was seeking a hearing in the Supreme Court after the District Court of Appeal had refused to issue a writ of prohibition. This contention is without merit. As stated [720]in 40 California Jurisprudence 2d, Prohibition, section 93, at page 275: “An appeal from an order denying prohibition does not restrain the proceedings complained of pending the appeal....”

In this ease the respondent bank was served with a copy of appellant’s brief. No brief was filed by the respondent bank within the time provided by the rules on appeal. A notice under rule [17]