DILLARD v. CITY OF LOS ANGELES (1942)

By petition for rehearing in this cause respondents contend that ‘this court has erred in determining this appeal upon the strength of statements and opinions expressed in affidavits filed in support of a motion for a new trial’, contrary to the rule announced by this court in Lucci v. United Credit and Collection Company, 220 Cal. 492, 31 P.2d 369. This contention cannot be sustained for the reason that on the last page of the transcript the following stipulation appears: ‘We hereby stipulate the foregoing (pages 22 to 77, inclusive) to be a full, true and fair transcript of the papers, and all of the papers, used or considered on the hearing at the trial of the within cause (in addition to the record contained in the clerk's transcript of the judgment roll herein).’ The affidavits referred to in the opinion of this court are embraced within the pages contained in the record referred to in the above-mentioned stipulation, and the facts contained in such affidavits were discussed in the briefs of both parties without any suggestion that such facts could not be considered by this court because they were contained in affidavits on motion for a new trial.

Other contentions made in respondents' petition for a rehearing are disposed of in the opinion of this court.

Respondents' petition for a rehearing is denied.

PER CURIAM.

EDMONDS, J., dissenting.