Chemi-Cote Perlite Corp. v. Harborlite Corp.

• Decision Date: 20 October 1966
• Docket Number: CA-CIV,CHEMI-COTE
• Citation: 4 Ariz.App. 268,419 P.2d 398
• Parties: PERLITE CORPORATION, a corporation, Appellant, v. HARBORLITE CORPORATION, a corporation, Appellee. * 2257.
• Court: Arizona Court of Appeals

Page 398

419 P.2d 398

4 Ariz.App. 268

CHEMI-COTE PERLITE CORPORATION, a corporation, Appellant, v. HARBORLITE CORPORATION, a corporation, Appellee. ^*

2 CA-CIV 257.

Court of Appeals of Arizona.

Oct. 20, 1966.

Spector & Johnson, by R. E. Johnson, Phoenix, for appellant.

Forquer, Wolfe & Rosen, by Sidney B. Wolfe and Allen L. Feinstein, Phoenix, for appellee.

MOLLOY, Judge.

This is an appeal from a judgment adverse to the plaintiff in an action brought to restrain the defendant from trespassing on two unpatented mining claims in Pinal County, Arizona. The case was tried to the court without a jury. The opening brief of the appellant indicates that the issues tried to the court revolve around whether or not the defendant had breached a lease between the plaintiff, as lessor, and Superior Industries, Inc., as lessee, the lessee's interest in which the appellant states was assigned to the appellee prior to the bringing of this action.

The judgment of the lower court indicates that the trial court found:

'That there was not sufficient evidence introduced necessary to prove a forfeiture of the lease; that the Defendant and not the Plaintiff was and still is in possession of the property more specifically described in the complaint; that the Defendant did not commit any substantial violations of the terms of the lease of said property.'

In its brief, the appellant states that the lease in question provided for a sixty day notice of termination in the event of default on the part of the lessee to fulfill any of its obligations under said lease, that the lease required the lessee to pay certain royalties, to mine the claims in a miner-like fashion and to perform other obligations under the lease, that the lessee defaulted in payment of royalties, that notice was given on August 17, 1961, of appellant's intention to terminate the lease unless certain deficiencies were corrected within sixty days, and that the lessee failed to correct the deficiencies within such time. The contentions made on appeal are to the effect that the evidence conclusively established that the lease in question was breached and that therefore the court was not justified in finding against the plaintiff in the lower court.

No transcript of the evidence has been made a part of the record on appeal. The appellee contends there was sufficient evidence to justify the court's findings and judgment and that the appellant's position on appeal is fatally defective because of the lack of a transcript. Besides this deficiency, the appellee calls our attention to the fact that several of the most critical exhibits, for instance, the lease upon which the action is predicated, do not appear to have been admitted in evidence at the trial to determine whether a permanent injunction should issue, but rather were only admitted at the hearing on a petition for temporary restraining order. Additionally, we note that the abstract of record contains no answer, nor any pretrial order, so that it is difficult to determine what issues were being tried.

The well-established general law appears to be that if an appellant bases an appeal upon the contention that there was insufficient evidence to support the judgment of the trial court, it is incumbent upon appellant to bring before the appellate court all of the evidence admitted below. 4A C.J.S. Appeal and Error § 1041, p, 1010; 4 Am.Jur.2d Appeal and Error, § 404, p. 867.

It is the appellant's contention that it was the appellee's duty to designate those portions of the transcript which support the judgment below. The appellant points to Rule 75(b), Rules of Civil Procedure, 16 A.R.S., which provides in part:

'75(b) Transcript. If there is designated for inclusion any evidence or proceeding at a trial or hearing which was stenographically reported, the appellant shall file within the period of time provided for transmitting the record on appeal as specified in Ruel 73(s), two copies of the reporter's transcript of the evidence or proceedings included in his designation. If the designation includes only part of the reporter's transcript, the appellant shall file two copies of such additional parts thereof as the appellee may designate that he desires to have added, and if the appellant fails to do so the court on motion may require him to furnish the additional parts needed.'

The contention of the appellant that this rule places some burden upon the appellee when no transcript at all is made a part of the record on appeal lacks...