Rubenstein v. Bank of America National Trust & Savings Assn.

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[Civ. No. 6041. Third Appellate District. November 30, 1938.]

FANNIE RUBENSTEIN, Respondent, v. BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION (a National Banking Association) et al., Defendants; ANNIE SCHACKINOFSKY, etc., Appellant.


William P. Redmond for Appellant.

Harry Sherr for Respondent.


Thompson, J.

This is an appeal from a judgment quieting title in the plaintiff to lot 7, block "C" of the Bird tract, in Los Angeles, according to the map thereof, recorded in book 14, page 74, of Miscellaneous Records of said county. The appeal is presented to this court on the judgment roll only. No bill of exceptions was settled, and no evidence is before us.

There is no merit to this appeal. Upon elaborate pleadings, after trial on the merits, the court adopted findings favorable to the plaintiff on every essential issue which was presented, determining that the plaintiff "has been and now is the owner in fee" of the land described. All of the allegations of the plaintiff's complaint were found to be true. On the contrary, all of the essential allegations of the defendants' answer and cross-complaint were found to be untrue. A judgment was accordingly rendered, quieting title to the land in the plaintiff. From that judgment the defendant, Annie Goldstein Levy, has appealed.

[1] It is not contended the judgment is not supported by either the pleadings or the findings. No admissions of the pleadings are pointed out as conflicting with the findings or judgment. Since this appeal is founded on the judgment roll only, and no evidence is presented to this court, we must assume every material fact necessary to support the pleadings and judgment was adequately established at the trial. (Marr v. Southern California Gas Co., 198 Cal. 278, 282 [245 P. 178]; 2 Cal.Jur. 525, sec. 262.) Likewise, the affidavit which was filed in this court purporting to state facts affecting the judgment, is not part of the judgment roll, and may, therefore, not be considered on this appeal. (Sec. 670, Code Civ. Proc.; State Bank of Lansing v. McLaury, 175 Cal. 31, 34 [165 P. 71]; E. A. Strout Western Realty Agency, Inc., v. McCloud, ante, p. 400 [84 PaCal.2d 533]; 2 Cal.Jur. 526, sec. 263.) In reply to the failure to present to this court the evidence adduced at the trial by a bill of exceptions or otherwise, the appellant asserts that no evidence was adduced at the trial. In that statement we assume the appellant is in error. At least, the record does not [29 Cal. App. 2d 503] support the appellant in that contention. Both the findings and the judgment recite that the court "examined the various files and records" presented at the trial.

It is, therefore, improper and useless to consider the numerous contentions of the appellant regarding various questions of law which, in the absence of evidence presented to this court on appeal, we may not assume are necessarily involved in the judgment. Moreover, we must assume the files and "records" which the court did consider at the trial adequately support the findings and judgment.

The judgment is affirmed.

Pullen, P. J., and Steel, J., pro tem., concurred.

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