Wolf v. Drew

271 P. 346, 94 Cal. App. 449, 1928 Cal. App. LEXIS 632

• Court: California Court of Appeal
• Decided: October 24, 1928
• Docket: Docket No. 6568.
• Status: Published

Opinion

DOOLING, J., pro tem.

This is an appeal from a judgment dismissing the action under section 583 of the Code of Civil Procedure for failure to bring the same to trial within two years after answer filed. The appeal is taken under section 953a of the Code of Civil Procedure, and the transcript contains, in addition to the judgment-roll, what purports to be a copy of an affidavit and certain oral testimony introduced in the court below in opposition to the motion to dismiss. Counsel have stipulated for diminution of the record by the addition thereto of a copy of an affidavit introduced by respondent in support of the motion.

The transcript contains the certificate of the clerk, but no certificate of the trial judge. In this state of the record this court is limited to a consideration of the judgment-roll. “Neither the certificate of the clerk nor the stipulation of the attorneys . . . can take the place of the judge’s certificate so as to constitute the transcript a sufficient record under 953a.” (People v. California Protective Corp., 76 Cal. App. 354, 365 [244 Pac. 1089, 1093] ; Pouchan v. Godeau, 21 Cal. App. 365 [131 Pac. 879]; Jeffords v. Young, 197 Cal. 224 [239 Pac. 1054].)

Counsel for appellant have applied to this court for leave to produce additional evidence under section 956a of the Code of Civil Procedure. This evidence consists of two newspaper accounts of the departure of appellant’s former attorney from San Francisco, Apart from any other consideration it is clear that these newspaper accounts are hearsay and not admissible to prove the truth of what they assert.

The motion to produce additional evidence is accordingly denied and, no error appearing from the judgment-roll, the judgment appealed from is affirmed.

Sturtevant, J., and Koford, P. J., concurred.