Springer v. Best, 15897.
| Decision Date | 18 February 1959 |
| Docket Number | No. 15897.,15897. |
| Citation | 264 F.2d 24 |
| Parties | Curtis H. SPRINGER, Appellant, v. May BEST et al., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Curtis H. Springer, Baker, Cal., for appellant, in pro. per.
Paul Hill, Max L. Herzig, Hollywood, Cal., for appellees.
Before CHAMBERS, BARNES and HAMLEY, Circuit Judges.
This appeal presents an incredible and almost impossible "record" for a reviewing court. Appellant Springer, though constantly urged to employ legal counsel, appears in propria persona. Appellee May Best, though repeatedly urged to employ legal counsel, appears in propria persona. Appellee Albright appears by attorneys Herzig and Hill, as do the three appellee minors, Lolly, Dolly and Tommy Best. One of the attorneys, Max L. Herzig states, seeking to appear as amicus curiae, "that he is a physician by profession."1 We commented in our per curiam opinion affirming the lower court in the companion Adamson case on his lack of legal skill. This case presents similar examples, but more of them. This because here the case was tried, not dismissed below.
The matter stricken from the record here is comparable in volume to that which remains before us. Much more could readily have been stricken as impertinent, scandalous, scurrilous, and of no relevancy whatsoever. However, we have patiently attempted to examine all that was before us, and have endeavored to understand and interpret to the best of our ability the truly remarkable collection of documents — the pleadings and the exhibits. (For an example of one of the more coherent exhibits, see note 3 in the margin.)
Upon hearing motions prior to the hearing of the case on its merits, this Court by a per curiam opinion dated April 10, 1958, ___ F.2d ___, struck certain motions and certain documents in support thereof, described then by us as remarkable, impertinent and/or scandalous, from the files. Reference is hereby made to said per curiam opinion, and it is incorporated herein by reference to make this opinion more understandable. Particularly do we again call appellant's attention to the following paragraph appearing therein:
May Best filed this action below, suing for recovery under an alleged contract. She recovered nothing because of a jury verdict against her. No appeal is taken from the judgment against her based on that verdict.
Judgment was recovered by various intervenors, whose claims were decided by the same jury verdict, in the amounts specified below:
(1) Mr. & Mrs. Bruce Adamson ........................... $ 850.00
(2) Jessie Corlett ..................................... 650.00
(3) Mr. & Mrs. Edward E. & Frieda Choate ............... 650.00
(4) Rev. D. C. & Mrs. Zemenna Fowler ................... 650.00
(5) Mrs. Ida Green ..................................... 1,000.00
(6) Mrs. Ruth Ellis Wiley .............................. 1,500.00
(7) Mrs. Reale Neva Anderson ........................... 650.00
(8) Lolly, Dolly and Tommy Best, all minor children, "in
care of (sic) Paul Hill, Esq., their Guardian, ad
litem" ............................................. 12,500.00
(9) Clara Albright, also known as Clara Ulbrecht ....... 5,000.00
A motion for a new trial was made and denied below, and timely appeal is taken here.
Appellant Springer, in his opening brief, states:
"Defendant does not appeal from the decision of the jury as touching plaintiff Best or from the decision of the jury as touching the following named plaintiff Intervenors from whom defendant received loans as was evidenced by the contracts which defendant presented in Court."
The Adamson, Corlett, Choate, Fowler, Green, Wiley, and Anderson judgments are then listed.
Thus we understand that appellant Springer appeals only from that portion of the judgment awarding Lolly, Dolly and Tommy Best the sum of $12,500, and Mrs. Clara Albright (or Ulbrecht) the sum of $5,000.
Appellant designated as his record on appeal the "Entire District Court Files and Exhibits." Those are before us, but there is no transcript of the testimony, and hence not one word of the testimony given at the trial.
In our per curiam opinion filed April 10, 1958, we made, in part, the following order with respect to this appeal:
"Unless bond, as required by Rule 73(c), F.R.Civ.Proc., and a statement of points, as described in Rule 17(6), United States Court of Appeals, 9 Cir. 28 U.S.C.A., are presented to the Clerk of this Court within ten days, the appeal will be dismissed."
No bond nor statement of points was filed within ten days, but on April 30, 1958, a cash deposit for costs was filed and a "Designation of Record Material to Appeal." Appellant filed the last document through attorneys designated as of record, which designated in detail the following material:
Thus we find one of the documents designated as material to this appeal relates to the claim of claimant Magie France, which did not result in a judgment against appellant, and three others to the judgment favoring claimants Green, Adamson and Fowler, which appellant does not dispute on this appeal.
Whether the complaints in intervention on behalf of Clara Albright and the three minor children should or should not have been filed are ordinarily matters of discretion lying with the trial court. There is here no charge of an abuse of discretion. We have no reason to believe that the trial court's discretion was abused in this case.
Appellant, in his reply brief, recognizes that no transcript of the testimony given at the seven day jury trial is before this Court, saying:
"Since a transscript (sic) of the case is not available, appellant shall make no reference to statements or testimony in No. 20852 T.C. but rather base his points on the Exhibits or record in said case and certain other physical facts within the knowledge of this Honorable Court."
The first question presented then is whether, with no record before us, and no question raised on this appeal either as to the legal sufficiency of the complaints in intervention to state a cause of action, or as to the fairness of the instructions given, there is anything before this Court upon which it can rule. We conclude that there is.2
Appellant's brief, though completely disorganized, and at times unintelligible, apparently relies on the following points:
(1) "Possible error" in awarding $12.500 to the three minors because of the following theories: (a) there was no proof that money was paid to appellant by them. This entirely ignores Exhibit 1.3 But appellant says "there was no proof offered of an original of Plaintiff's Exhibit 1." Exhibit 1 was a photostatic copy of a typewritten document (or a carbon copy of a typewritten document), purportedly signed by Curtis H. Springer and May Best. With no record of the testimony before us it is impossible to determine whether or not a proper foundation was laid to justify the introduction of a photostatic copy in place and stead of an original document. Once such a foundation was laid, there is no reason plaintiffs could not have relied on the copy. Schuyler v. United Airlines, D.C.M.D.Pa.1950, 94 F.Supp. 472, 475, affirmed 3 Cir., 1951, 188 F.2d 968; United States v. Braden, 6 Cir., 1937, 92 F.2d 682. McCormick, Evidence § 206 (1954); 4 Wigmore, Evidence § 1281 (3d ed. 1940). Cf. also, 28 U.S.C. § 1732. From the record before us we have no way of determining the question of a proper foundation. The burden is on appellant to establish error, and not having done so, we must rule against...
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