MOTT v. HORSTMANN

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District Court of Appeal, First District, Division 2, California.

MOTT v. HORSTMANN.

Civ. 14240.

Decided: April 26, 1950

Buckley & Ehlers, Oakland, for appellant. Stanley C. Smallwood, Oakland, for respondent.

The petition for a rehearing is based solely on the ground that this court failed to pass upon the issue relating to the purported violation of section 32 of the Oakland Charter. That issue was decided adversely to the respondent in the trial court and was argued by respondent on appellant's appeal, the respondent urging that we reverse that portion of the judgment but appellant insisting that it should not be considered because respondent had not appealed from it. We agreed with appellant's position and limited our judgment to the matter properly before us.

Where we have affirmed a judgment discharging the alternative writ of mandate and approved the findings and conclusions on which the discharge was based we cannot thereafter review at appellant's request the correctness of other findings and conclusions rejecting certain defenses which other points were not reflected in the judgment below and were favorable to appellant. See 2 Cal.Jur. Appeal and Error, secs. 471, 492, 493.

The petition is denied.

PER CURIAM.