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District Court of Appeal, Second District, Division 1, California.


Civ. 11675.

Decided: January 21, 1938

Ferman E. Davis and Herbert Cutler Brown, both of Hollywood, for petitioner. Carpenter, Babson & Fendler and Everett W. Mattoon, Co. Counsel, all of Los Angeles, for respondents.

It appears from the record herein that Leslie E. Still, Judge of the superior court, made a certificate, certifying:

2 “Judge's Certificate

“I Hereby Certify the foregoing transcript consisting of 146 pages to be true and correct, and the same is hereby settled and allowed this 8th day of October, 1937.

“Leslie E. Still,

“Judge of the Superior Court.”

This certificate was attached to a transcript which contained the following stipulation:


“We Hereby Stipulate the foregoing to be a full, true and correct transcript of the papers, pleadings, records and files presented by defendant and appellant at the hearing of said motion on May 27, 1937, in the above entitled court and cause.

“Ferman E. Davis

“Herbert Cutler Brown

“Attorneys for Defendant and Appellant

“Ingle Carpenter & Harold A. Fendler

“By Harold A. Fendler

“Attorneys for Plaintiff and Respondent.”

The plaintiff was one Zoe Lowe Brown and the only defendant, Herbert Cutler Brown, was also the only appellant in the proceeding in which the “transcript” was prepared.

An order to show cause was issued herein to determine whether or not the said defendant judge had, in certifying to said transcript, fully complied with everything that was legally required of him in the premises. The above certificate signed by the trial judge is a more favorable certification for appellant than the stipulation provided for, and it is called to our attention in the response to the order to show cause that there was other evidence presented to the court by Zoe Lowe Brown, the plaintiff in the case, upon the hearing of the motion of petitioner, which evidence is not set out in the “transcript.” Said motion was denied by the trial court, and in denying the petitioner's motion the said court not only considered the evidence introduced by the defendant, who is also the appellant, but also considered the oral testimony introduced by the plaintiff in said original case who was resisting the motion of appellant therein, which evidence consisted of documentary evidence and records and files. No part or portion of the evidence so presented by the said plaintiff and respondent upon the hearings of the “motion for an Order or judgment of respondent court vatacing and setting aside the portion of the Judgment of December 9, 1936” (page 5, lines 11 to 15, inclusive, of “Petition for Relief and for Writ of Mandate,” quoted without correction) appears in the transcript presented for certification to Judge Still.

The concluding portion of the response to the order to show cause filed herein requests that petitioner's order to show cause herein should be discharged and both his petition and appeal dismissed.

The petitioner's order to show cause herein is discharged, for the reason that the trial judge has made a certificate as favorable to petitioner herein as could be made in the given matter under the facts and circumstances shown, to wit, the fact that there was evidence introduced other than the evidence set forth in the transcript on appeal presented by the petitioner herein. We are not passing upon the sufficiency of the method of appeal, as that is unnecessary by reason of the foregoing decision.

YORK, Presiding Justice.

We concur: DORAN, J.; WHITE, J.

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