Hertel v. Emireck

California Supreme Court

Hertel v. Emireck

174 P. 30, 178 Cal. 534, 1918 Cal. LEXIS 512

CourtCalifornia Supreme Court

DecidedJuly 15, 1918

DocketL. A. No. 4573. Department One.

StatusPublished

Cited by19 cases

This text of 174 P. 30 (Hertel v. Emireck) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hertel v. Emireck, 174 P. 30, 178 Cal. 534, 1918 Cal. LEXIS 512 (Cal. 1918).

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Opinion

SLOSS, J.

This action was brought to foreclose a mortgage of real property, executed by the defendant, Summerland Realty Company, a corporation, to secure its note for three hundred dollars. Said defendant appeals from the judgment, which was in favor of the plaintiff, and from an order denying its motion for a new trial.

The answer admitted the execution of the note and mortgage, and nonpayment of the debt. It set up affirmative defenses based upon misrepresentations alleged to have been *535 made by the plaintiff in the negotiations leading up to the giving of the note and mortgage. The court found that no such misrepresentations had been made. The evidence is not before us, and the appellant makes no point on its appeal from the judgment.

It is argued that a new trial should have been granted on the ground of newly discovered evidence. But the record contains no showing upon which this point can be considered. Copies of certain affidavits are embodied in the printed transcript. But these papers are not authenticated, either by incorporation in a bill of exceptions or under Code of Civil Procedure, section 953a. They cannot, therefore, be considered here. (Supreme Court Rule XXIX, [160 Cal. lvi, 119 Pac. xiv]; Herrlich v. McDonald, 80 Cal. 472, [22 Pac. 299]; Von Glahn v. Brennan, 81 Cal. 261, [22 Pac. 596] ; Melde v. Reynolds, 120 Cal. 234, [52 Pac. 491] ; San Diego Sav. Bank v. Goodsell, 137 Cal. 420, [70 Pac. 299].)

The further point is made that the decision was against law in that the court failed to find upon certain issues raised by the pleadings. The findings actually made were such as to require a judgment in plaintiff’s favor, and this result could not have been changed by a disposition, either way, of other issues. The want of further findings was, therefore, immaterial. (Fogg v. Perris Irr. Dist., 154 Cal. 209, [97 Pac. 316].) Besides, the issues which, as appellant claims, were not answered by findings were raised by its own affirmative allegations. The evidence not having been brought up, we must assume that the defendant offered no proof in support of these averments. The want of findings thereon is, accordingly, no ground for reversal. (Himmelman v. Henry, 84 Cal. 104, [23 Pac. 1098]; Winslow v. Gohransen, 88 Cal. 450, [26 Pac. 504]; Roberts v. Hall, 147 Cal. 434, [82 Pac. 66]; Coats v. Coats, 160 Cal. 671, [36 L. R. A. (N. S.) 844, 118 Pac. 441].)

The judgment and the order denying a new trial are affirmed.

Shaw, J., and Richards, J., pro tem., concurred.

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SLOSS, J.

This action was brought to foreclose a mortgage of real property, executed by the defendant, Summerland Realty Company, a corporation, to secure its note for three hundred dollars. Said defendant appeals from the judgment, which was in favor of the plaintiff, and from an order denying its motion for a new trial.

The answer admitted the execution of the note and mortgage, and nonpayment of the debt. It set up affirmative defenses based upon misrepresentations alleged to have been *535 made by the plaintiff in the negotiations leading up to the giving of the note and mortgage. The court found that no such misrepresentations had been made. The evidence is not before us, and the appellant makes no point on its appeal from the judgment.

It is argued that a new trial should have been granted on the ground of newly discovered evidence. But the record contains no showing upon which this point can be considered. Copies of certain affidavits are embodied in the printed transcript. But these papers are not authenticated, either by incorporation in a bill of exceptions or under Code of Civil Procedure, section 953a. They cannot, therefore, be considered here. (Supreme Court Rule XXIX, [160 Cal. lvi, 119 Pac. xiv]; Herrlich v. McDonald, 80 Cal. 472, [22 Pac. 299]; Von Glahn v. Brennan, 81 Cal. 261, [22 Pac. 596] ; Melde v. Reynolds, 120 Cal. 234, [52 Pac. 491] ; San Diego Sav. Bank v. Goodsell, 137 Cal. 420, [70 Pac. 299].)

The further point is made that the decision was against law in that the court failed to find upon certain issues raised by the pleadings. The findings actually made were such as to require a judgment in plaintiff’s favor, and this result could not have been changed by a disposition, either way, of other issues. The want of further findings was, therefore, immaterial. (Fogg v. Perris Irr. Dist., 154 Cal. 209, [97 Pac. 316].) Besides, the issues which, as appellant claims, were not answered by findings were raised by its own affirmative allegations. The evidence not having been brought up, we must assume that the defendant offered no proof in support of these averments. The want of findings thereon is, accordingly, no ground for reversal. (Himmelman v. Henry, 84 Cal. 104, [23 Pac. 1098]; Winslow v. Gohransen, 88 Cal. 450, [26 Pac. 504]; Roberts v. Hall, 147 Cal. 434, [82 Pac. 66]; Coats v. Coats, 160 Cal. 671, [36 L. R. A. (N. S.) 844, 118 Pac. 441].)

The judgment and the order denying a new trial are affirmed.

Shaw, J., and Richards, J., pro tem., concurred.

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174 P. 30, 178 Cal. 534, 1918 Cal. LEXIS 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hertel-v-emireck-cal-1918.

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