Jenkins v. Zimmerman

California Court of Appeal

Jenkins v. Zimmerman

246 P. 563, 77 Cal. App. 341, 1926 Cal. App. LEXIS 291

CourtCalifornia Court of Appeal

DecidedApril 5, 1926

DocketDocket No. 5346.

StatusPublished

This text of 246 P. 563 (Jenkins v. Zimmerman) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jenkins v. Zimmerman, 246 P. 563, 77 Cal. App. 341, 1926 Cal. App. LEXIS 291 (Cal. Ct. App. 1926).

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Opinion

NOURSE, J.

Plaintiffs sued to restrain the erection of an apartment house by the defendant on the theory that the plans and specifications did not provide sufficient air space as contemplated by the State Housing Act. [Stats. 1923, p. 781.] Upon the hearing of plaintiffs’ motion for a temporary injunction two affidavits were filed by the defendant. It does not appear whether any oral testimony was taken, but the record discloses an order of the trial judge dismissing the order to show cause after a hearing. From this order the appeal was taken and has been presented on a typewritten record, certified by the clerk, but not by the trial judge. Though the reporter was ordered to prepare a transcript, none has been filed. The record is plainly insufficient to warrant a review by this court. (Code Civ. Proc., sec. 953a; Jeffords v. Young, 197 Cal. 224 [231 Pac. 724], and cases there cited.)

Furthermore, the notice of appeal states that it is taken from the order refusing to grant appellants an injunction, but the record does not contain a motion for the injunction or any information as to the grounds upon which the motion was made. It does appear that two affidavits were filed “in opposition to motion for injunction.” Assuming that these affidavits were before the trial court on the hearing, they were sufficient to support the order denying an injunction and in the absence of any other showing we cannot say on this record that error occurred.

Order affirmed.

Sturtevant, J., and Langdon, P. J., concurred.

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NOURSE, J.

Plaintiffs sued to restrain the erection of an apartment house by the defendant on the theory that the plans and specifications did not provide sufficient air space as contemplated by the State Housing Act. [Stats. 1923, p. 781.] Upon the hearing of plaintiffs’ motion for a temporary injunction two affidavits were filed by the defendant. It does not appear whether any oral testimony was taken, but the record discloses an order of the trial judge dismissing the order to show cause after a hearing. From this order the appeal was taken and has been presented on a typewritten record, certified by the clerk, but not by the trial judge. Though the reporter was ordered to prepare a transcript, none has been filed. The record is plainly insufficient to warrant a review by this court. (Code Civ. Proc., sec. 953a; Jeffords v. Young, 197 Cal. 224 [231 Pac. 724], and cases there cited.)

Furthermore, the notice of appeal states that it is taken from the order refusing to grant appellants an injunction, but the record does not contain a motion for the injunction or any information as to the grounds upon which the motion was made. It does appear that two affidavits were filed “in opposition to motion for injunction.” Assuming that these affidavits were before the trial court on the hearing, they were sufficient to support the order denying an injunction and in the absence of any other showing we cannot say on this record that error occurred.

Order affirmed.

Sturtevant, J., and Langdon, P. J., concurred.

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246 P. 563, 77 Cal. App. 341, 1926 Cal. App. LEXIS 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-zimmerman-calctapp-1926.

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