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District Court of Appeal, Fourth District, California.


Civ. 3077.

Decided: December 10, 1942

N. Lindsay South, of Fresno, for appellant. L. B. Hayhurst, of Fresno, for respondent.

This is an action for partition of real property, the defendant having filed a cross–complaint seeking to quiet her title in and to all of the property. A judgment in favor of the plaintiff was entered on April 7, 1942. The defendant moved to vacate and set aside the judgment, which motion was denied on August 23, 1942. On August 26, 1942, the defendant appealed from the order denying this motion. A clerk's transcript was filed on September 25, 1942, and the appellant's opening brief was filed on October 26, 1942. Thereafter, the respondent gave notice of motion to dismiss the appeal on the grounds that no record on appeal has been filed as required by rule XXIX of the Rules for the Supreme Court and District Courts of Appeal, and that the order appealed from is not an appealable order. The motion to dismiss was made and submitted on the record and the moving papers.

The only certificate attached to the record is that of the county clerk, who certifies that the copies in the transcript are true and correct copies of the originals in his office. There is no certificate by the trial judge and nothing to show that the documents appearing in the clerk's transcript were used or considered on the hearing, or that the court's decision was not based upon others which are not in the record. There is, therefore, no record upon which the appeal could be considered or decided. Under these circumstances the motion must be granted. Kwon v. Kwon 39 Cal.App.2d 232, 102 P.2d 808; Bartholomew v. Cross, 42 Cal.App.2d 28, 108 P.2d 49; Svoboda v. Lambert, 43 Cal.App.2d 378, 110 P.2d 1022.

The appeal is dismissed.


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