Sol Burstein, Plaintiff and Appellant v. Joseph Zelman, Defendant and Respondent

• Decision Date: 16 March 1960
• Parties: Sol BURSTEIN, Plaintiff and Appellant, v. Joseph ZELMAN, Defendant and Respondent. Civ. 24165.
• Court: California Court of Appeals Court of Appeals

Page 446

3 Cal.Rptr. 446

Sol BURSTEIN, Plaintiff and Appellant, v. Joseph ZELMAN, Defendant and Respondent.

Civ. 24165.

District Court of Appeal, Second District, Division 2, California.

March 16, 1960.

Rehearing Denied April 4, 1960.

Hearing Granted and Cause Retransferred to District Court of Appeal May 11, 1960.

Sol Burstein in pro. per.

Joseph Zelman in pro. per.

ASHBURN, Justice.

Plaintiff's appeal herein has been submitted under Rule 17(b) of Rules on Appeal because of respondent's failure to file a brief. Apparently he is in bankruptcy.

The appeal purports to be taken from (a) order of June 17, 1958, vacating the judgment; (b) order of September 29, 1958; (c) judgment entered on October 21, 1958, in favor of defendant; and (d) order of December 1, 1958, denying plaintiff's motion for new trial. There is no order of September 29, 1958, in the record. An order denying a motion for new trial in a civil cause is not appealable (3 Cal.Jur. 2d § 62, p. 500). The transcript contains no judgment of October 21, 1958. It does include an order of June 17, 1958, vacating the findings and judgment theretofore entered and reopening the cause 'for further proceedings and further introduction of additional evidence on the sole issue of the amount, if any, paid by the plaintiff on the partnership losses.' This last mentioned order is not an appealable order (Kelly v. Sparling Water Co., 52 Cal.2d 628, 632, 343 P.2d 257). It could be reviewed upon an appeal from a new judgment. However, there is no competent showing that in fact a new judgment was entered after the reopening of the case or upon October 21, 1958. ¹

It is fundamental to appellate review that the judgment or order which is challenged must be included in the record before the reviewing court. San Diego Inv. Co. v. Crane, 40 Cal.App. 393, 394, 180 P. 837; Savings & Loan Soc. v. Meeks, 66 Cal. 371, 374, 5 P. 624; Conley v. Apablasa, 42 Cal.App.2d 565, 567, 109 P.2d 367; Supple v. Luckenbach, 45 Cal.App.2d 734, 735, 114 P.2d 734; Curran v. Giometti, 20 Cal.App. 2d 405, 406, 66 P.2d 1260; Kimple v. Conway, 69 Cal. 71, 72, 10 P. 189; Valley Lumber Co. v. Struck, 146 Cal. 266, 271-272, 80 P. 405; O'Connell v. O'Connell, 201 Cal. 48, 52-53, 255 P. 514; Lewis v. Fowler, 80 Cal.App. 717, 721, 252 P. 786; 3 Cal.Jur.2d § 258, p. 778; 3 Am.Jur. § 598, p. 228.

While the rules on appeal no longer require the complete judgment roll to be included in the record in all cases (see Rule 5(d)), they give no indication of an intention to sanction the omission of those papers which are indispensable to review of the order or judgment which is under attack. Nor does Rule 52 cure the fatal defect we are now discussing. ² It does not 'do away with the necessity of affirmatively showing error, and if no error appears on the face of the partial transcript the appellate court will not presume that if the whole transcript had been presented some error would appear.' Palpar, Inc. v. Thayer, 83 Cal.App.2d 809, 811, 189 P.2d 752, 753; Accord: Utz v. Aureguy, 109 Cal.App.2d 803, 807, 241 P.2d 639; Kabzenell v. Stevens, 168 Cal.App.2d 370, 376, 336 P.2d 250; Hawke v. Burns, 140 Cal.App.2d 158, 169, 294 P.2d 1008. Indeed, the rule itself says: 'On an appeal on the judgment roll alone, or on a partial or complete clerk's transcript, the foregoing presumption shall not apply unless the error claimed by appellant appears on the face of the record.' Manifestly, no error can appear on the face of a record which does not include the order or judgment under attack. Not only do we have no judgment in the record at bar, but there is no minute order showing that one was made after the cause was reopened. So far as we know officially, the matter may still be in the breast of the court. Mere assertions of appellant's brief cannot fill the hiatus left by a transcript which includes no pleadings and no judgment.

With specific reference to the order of June 17, 1958, vacating the prior findings and judgment and reopening the cause for further evidence, it must also be held that the propriety of that order cannot possibly be determined without a proper record showing the content of the findings and judgment thus vacated.

Appellant presents this appeal in propria persona. One who elects so to do 'assumes for all purposes connected with his case, and must be prepared to be treated as having, the qualifications and responsibilities...