White v. Jones
| Decision Date | 26 October 1955 |
| Citation | 136 Cal.App.2d 567,288 P.2d 913 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Marlon C. WHITE, also known as Marlon C. Kellett, Plaintiff and Respondent, v. George W. JONES, Employees Enterprises, Inc., Anderson, Clayton & Co., and Security Title Insurance & Trust Company, Defendants, George W. Jones, Appellant. Civ. 21211. |
Robert E. Benton, James R. Jaffray, Los Angeles, for appellant.
David H. Baldwin, San Bernardino, for respondent.
This is an action to annul a deed and to quiet plaintiff's title to certain real property against the claims of defendant.
By her complaint, filed on October 17, 1952, plaintiff alleged that the defendant had induced her on the 13th of September, 1949, to sign a deed conveying the property to him and her as joint tenants under the representation that the deed constituted merely a power of attorney. She further alleged that a confidential relationship existed between her and defendant (stepfather and daughter) and that she had not discovered the fraud or had notice of facts which would put her on inquiry as to it until a time less than three years before the commencement of the action.
Defendant by his answer denied all the material allegations of the complaint and affirmatively pleaded the statute of limitations. Code Civ.Proc. § 338, subd. 4. The trial court made written findings of fact by which it found the allegations of the complaint to be true and the affirmative allegations of the answer untrue. It rendered judgment for plaintiff as prayed.
Appellant does not attack the form of the findings or their sufficiency to support the judgment. His only contention is that the findings (he does not specify which) are contrary to the evidence. Appellant has not taken advantage of either Rule 4(a), Rule 4(b), Rule 6 or Rule 7(a) of the Rules on Appeal, so as to bring to this court the oral proceedings or any part thereof. The record on appeal here consists only of the clerk's transcript which contains the judgment roll and certain documents received in evidence in the court below.
In disposing of appellant's contention this appeal is therefore to be treated as one on the judgment roll. On such an appeal the question of sufficiency of the evidence to support the findings is not open. In re Estate of Larson, 92 Cal.App.2d 267, 206 P.2d 852.
The judgment here can only be attacked for errors which affirmatively appear upon the face of the judgment roll. Appellant cannot broaden the scope of this court's inquiry by incorporating in the clerk's transcript the documentary evidence received in the court below. Hunt v. Plavsa, 103 Cal.App.2d 222, 229 P.2d 482; Palpar, Inc., v. Thayer, 83 Cal.App.2d 809, 189 P.2d 752; Utz v. Aureguy, 109 Cal.App.2d 803, 241 P.2d 639; Glogau v. Hagan, 107 Cal.App.2d 313, 237 P.2d 329.
On an appeal based on a record such as that here, we must presume that in the oral proceedings there was substantial evidence to support the findings. In that inquiry we cannot look beyond the 'facts appearing in the findings' and here it is admitted that those facts support the judgment. Transportation Guarantee Co. v. Jellins, 29 Cal.2d 242, 174 P.2d 625; Hunt v. Plavsa, supra.
Rules 4(b), 6, 7 and 52 of the Rules on Appeal were designed to make appeals less burdensome and expensive. They were not, however, designed to nor do they broaden the questions that may be raised on a record such as the one here.
Prior to the adoption of the Rules on Appeal, on an appeal on a partial record it was presumed that the judgment, order or ruling attacked was supported by matters received by the trial court, or proceedings had in the trial court and which had been omitted from the record. Every intendment was resolved in favor of the regularity of the proceedings in the trial court. Gin S. Chow v. City of Santa Barbara, 217 Cal. 673, 22 P.2d 5; Garside v. Garside, 80 Cal.App.2d 318, at page 320, 181 P.2d 665; Utz v. Aureguy, supra, and cases cited therein, 109 Cal.App.2d at page 806, 241 P.2d 639.
In many cases this presumption was contrary to the true facts, but in order to protect himself appellant was forced to bring up a voluminous record to demonstrate that the alleged error had not been cured by proceedings in the court below.
It was the purpose of the Judicial Council in framing the Rules on Appeal to do away with the necessity of bringing up the entire record on every appeal. See discussion of the formulation of these rules in Alkus v. Johnson-Pacific Co., 80 Cal.App.2d 1, at pages 10 through 20, 181 P.2d 72. These rules provide several methods of shortening the record on appeal, each designed to make the record less voluminous and less expensive. In addition to providing for a full record on appeal, that is, a full transcript of the oral proceedings and a clerk's transcript, Rules 4(a), 5(a), (b), (e), they provide for shorter records consisting of the clerk's transcript and a partial transcript of the oral proceedings, Rule 4(b), or a settled statement, Rule 4(e) and Rule 7, or an agreed statement, Rule 6, and a settled statement in lieu of both transcripts, Rule 7(b).
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