Citizens Nat. Trust & Sav. Bank of Los Angeles v. Scott

• Decision Date: 02 December 1963
• Citation: 222 Cal.App.2d 718,35 Cal.Rptr. 584
• Court: California Court of Appeals Court of Appeals
• Parties: CITIZENS NATIONAL TRUST & SAVINGS BANK OF LOS ANGELES, a National Banking Association as Trustee of the Estate of Evelyn T. Scott, a Missing Person, Plaintiff and Respondent, v. Leonard Ewing SCOTT, sued herein as John Doe, Defendant and Appellant. Civ. 26799.

Page 584

35 Cal.Rptr. 584

222 Cal.App.2d 718

CITIZENS NATIONAL TRUST & SAVINGS BANK OF LOS ANGELES, a National Banking Association as Trustee of the Estate of Evelyn T. Scott, a Missing Person, Plaintiff and Respondent, v. Leonard Ewing SCOTT, sued herein as John Doe, Defendant and Appellant.

Civ. 26799.

District Court of Appeal, Second District, Division 1, California.

Dec. 2, 1963.

Leonard Ewing Scott, in pro. per.

No appearance for respondent Citizens Nat. Trust & Savings Bank of Los Angeles.

FOURT, Justice.

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 Association, 216 Cal.App.2d 154, 30 Cal.Rptr. 690 (216 A.C.A. 189, 198); Berg v. Investors Real Estate Loan Company, 207 Cal.App.2d 808, 813, 24 Cal.Rptr. 701; O'Callaghen v. Southern Pacific Company, 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 in 40 Cal.Jur.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 case 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 section 17(b) of the California Rules of Court was served on the respondent bank by the clerk of this court. In spite of such notice the respondent bank did not see fit to make any appearance nor in any manner to assist this court and as a consequence it has been necessary for us independently to research the various claims and assertions and representations of the appellant. Such a course of conduct upon the part of any litigant, particularly a national banking institution which is acting in the capacity of a trustee is not commendable and is looked upon with disfavor. The procedure followed by the bank demonstrates a woeful lack of interest and a dereliction of duty in the handling of the affairs of a trust.

But for the peculiar and particular facts and circumstances which go to make up the background of this case of which we necessarily are advised (see People v. Scott, 176 Cal.App.2d 458, 1 Cal.Rptr. 600; Scott v. California, 364 U.S. 471, 81 S.Ct. 245, 5 L.Ed.2d 222; In re Estate of Scott, 181 Cal.App.2d 605, 5 Cal.Rptr. 393; In re Estate of Scott, 150 Cal.App.2d 590, 310 P.2d 46), we might well have said as did Justice McComb in Berry v. Ryan, 97 Cal.App.2d 492, 493, 217 P.2d 1015; 1015 namely:

'Since respondent has not filed a brief we assume that (1) the facts as stated in appellant's brief...