Hurd v. Walker

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[Civ. No. 5436. Third Appellate District. October 17, 1935.]

RAYMOND HURD, Appellant, v. CHRISTINA WALKER, Respondent.


Peter T. Rice and Stanley Visel for Appellant.

Ernest M. Best for Respondent.


Thompson, J.

The plaintiff has appealed from a judgment which was rendered against him in a suit under the provisions of section 231 of the Civil Code to determine the paternity of an illegitimate child. It was held that he is the father of the child.

The appellant contends that the findings and judgment are not supported by the evidence; that the court erred in receiving in evidence a previous record of the proceedings of the juvenile court declaring him to be a ward of the court without first requiring the foundation for its admission to be proved. It is also asserted the court erred in denying plaintiff's motion for a new trial. The appeal is presented to this court on a settled bill of exceptions.

[1] An appeal from an order denying a motion for new trial does not lie. (Sec. 963, Code Civ. Proc.; Nordin v. Eagle Rock State Bank, 139 Cal. App. 584, 589 [34 PaCal.2d 490]; [9 Cal. App. 2d 527] Heine Piano Co. v. Bloomer, 183 Cal. 398 [191 P. 900].) Section 963, supra, was amended in 1915 so as to exclude the right of appeal from an order denying a motion for new trial. The notice of appeal from the order denying the motion for new trial in this case is ineffectual.

[2] The findings and judgment declaring that the plaintiff is the father of Kenneth Johnson, the illegitimate child of the defendant, are sufficiently supported by the evidence. There is a conflict of evidence in that regard. Under the well-established rule governing appellate courts under such circumstances we are powerless to disturb the findings or judgment. (Blythe v. Ayers, 102 Cal. 254 [36 P. 522]; Estate of Gird, 157 Cal. 534 [108 P. 499, 137 Am.St.Rep. 131]; 2 Cal.Jur., p. 879, sec. 515.) The defendant testified positively to repeated acts of sexual intercourse with the plaintiff at times when the child in question was likely to have been conceived. She said that she had access to no other man during that period of time. Kenneth was a witness at the trial of this case. He was then nine years of age. The trial judge had an opportunity of observing him and his likeness to the plaintiff which furnishes some slight evidence of paternity. The trial judge also had the opportunity of seeing the witnesses on the stand and of judging of their credibility and of the weight and sufficiency of the evidence. Other circumstances support the findings of the court that plaintiff is the father of the child. The evidence is therefore sufficient to support the findings and judgment.

[3] The appellant assigns the admission in evidence of the juvenile court proceedings as reversible error. We think not. That record was admitted "for limited purposes only". We assume that it was admitted for the purpose of impeaching the plaintiff by showing that he had made statements in that court proceeding in conflict with his testimony in this case. Moreover, we must assume this record was admitted in evidence without the objection of the appellant. The settled bill of exceptions does not show that any objection was made to the introduction of this record. [4] An objection to the introduction of evidence may not be made for the first time on appeal. (2 Cal.Jur., p. 263, sec. 82.) In the absence of a showing in the bill of exceptions to the contrary, in support of a judgment it will be presumed proper foundation for the introduction of an otherwise proper court record or document [9 Cal. App. 2d 528] was established. (Nemo v. Farrington, 7 Cal. App. 443, 446 [94 P. 874].)

The judgment is affirmed.

Pullen, P. J., and Plummer, J., concurred.

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