Utz v. Aureguy

• Citation: 109 Cal.App.2d 803,241 P.2d 639
• Court: California Court of Appeals
• Decision Date: 19 March 1952
• Parties: UTZ v. AUREGUY et al. Civ. 14726.

Page 639

241 P.2d 639

109 Cal.App.2d 803

UTZ v. AUREGUY et al.

Civ. 14726.

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

March 19, 1952.

Alfred J. Hennessy, San Francisco, for appellant.

W. Byron Bryant, Jay Pfotenhauer and Simpson Finnell, Jr., all of San Francisco, for respondents DeLancey C. Smith and George K. Ford.

PER CURIAM.

This is an appeal on the judgment roll from a judgment dismissing the action.

The record consists of the third amended complaint; notice of motion to amend the same, and the amendment; motion to dismiss; demurrer to third amended complaint and to the amendment thereto; points and authorities; order of substitution; judgment; notice of appeal, and request for transcript.

The motion to dismiss the action was made on the grounds that 'As originally begun with the filing of the complaint herein, the action was sham and based on false allegations' and the first, second and third amended complaints were 'likewise sham and based upon false allegations'; that the filing of the third amended complaint and its amendment, and the maintenance of the action, 'were and are an abuse of the process of the court by the plaintiff', and that 'the interests of justice will be served by the dismissal * * *.' The motion was based on four affidavits theretofore filed by defendants, and all the records, papers and pleadings, including the original complaint, the first, second and third amended complaints, the amendment to the latter, the demurrers and answers thereto, the motions to strike, and a deposition of the plaintiff.

Appellant, an attorney at law, sued for damages arising from being deprived of what she claimed to be her share in attorney fees recovered by respondents, from certain heirs of the late Michael F. O'Dea, whose estate--of large value--was in probate.

The judgment judgment recites that after full argument on the motion and demurrer, the motion was granted and the demurrer sustained without leave to amend.

The record on appeal:

Although the motion to dismiss was based on (a) defendants' four affidavits, (b) all the pleadings in the case, and (c) a deposition of the plaintiff, this record contains none of them save the third amended complaint and its amendment and the demurrer thereto. Indeed the request for a transcript called for none of them; it called for the notice of appeal, the notice of motion and the motion to substitute a party, the order granting such motion, and for nothing else.

In the absence of defendants' four affidavits, plaintiff's counter-affidavits (if any were filed), plaintiff's deposition, and the first three complaints, all of which constituted the showing before the trial court, there is no way of knowing anything about that showing. Without the three earlier complaints there is no basis for the comparison of one with another to ascertain if there were any departures, variances, inconsistencies, or conflicts within them, or other evidence of a shifting of theories, all of which as a rule are highly important on such a motion.

'It is incumbent upon the appellant to make it affirmatively appear that error was committed by the court below.' Cockrill v. Clyma, 98 Cal. 123, 126, 32 P. 888, 889.

'When an appeal * * * is to be determined upon the judgment roll alone, all intendments will be made in support of the judgment, and all proceedings necessary to its validity will be presumed to have been regularly taken. * * * If any matters could have been presented to the court below which would have authorized the entry of this judgment, it will be presumed on this appeal, in support of the judgment, that such matters were so presented, and that the judgment was entered in accordance therewith.' Caruthers v. Hensley, 90 Cal. 559, 560, 27 P. 411. In Riley v. Dunbar, 55 Cal.App.2d 452, 455, 130 P.2d 771, the rule is restated and 2 Cal.Jur. § 499, p. 852 et seq. cited.

In Helvey v. Security etc. Bank, 99 Cal.App.2d 149, 151, 221 P.2d 257, the court said: 'No record of the evidence before the trial court has been supplied to this Court. Therefore, it must be presumed that the evidence supports the order. Vieth v. Klett, 88 Cal.App.2d 23, 198 P.2d 314; Lucich v. Lucich, 75 Cal.App.2d 890, 172 P.2d 73. * * * The Superior Court has inherent power to dismiss actions which are made to appear fictitious and sham. Cunha v. Anglo California National Bank, 34 Cal.App.2d 383, 93 P.2d 572.'

In Oakley v. Rosen, 76 Cal.App.2d 310, 312, 173 P.2d 55, 56, the court that it is 'well settled that when an appeal is based upon the judgment roll alone a reversal cannot be ordered except for a fatal error on the face of the judgment'.

In Nulsen v. Nulsen, 84 Cal.App.2d 306, 307, 190 P.2d 316, 317, the court said: 'The record on appeal consists of the clerk's transcript only. And it is well settled that when the record on appeal consists of the judgment roll alone, only the alleged errors appearing therein may be considered. No such errors appear.' The same may be said here.

Since the adoption of Rule 52, Rules on Appeal, if an error appears on the face of a judgment roll or other partial transcript it is not to be presumed on appeal that the error was cured by some proceeding not appearing in the transcript, Estate of Pierce, 32 Cal.2d 265, 196 P.2d 1; Alkus v. Johnson Pacific Co., 80 Cal.App.2d 1, 181 P.2d 72; Palpar, Inc., v. Thayer, 82 Cal.App.2d 578, 186 P.2d 748, but it is still incumbent on an appellant to present a transcript which affirmatively shows on its face that...