Edward Dunbar O'brien, Appellant, v. Metro-goldwyn-mayer, Inc., et al., Appellees, 319 F.2d 294 (9th Cir. 1963)

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US Court of Appeals for the Ninth Circuit - 319 F.2d 294 (9th Cir. 1963) June 3, 1963

Willedd Andrews, Los Angeles, Cal., for appellant.

Loeb & Loeb, Lawrence Parke Watkin and Sol Rosenthal, Los Angeles, Cal., Kaplan, Livingston, Goodwin & Berkowitz, Beverly Hills, Cal., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and FOLEY, District Judge.

ROGER D. FOLEY, Jr., District Judge.

The Court below dismissed appellant's complaint with prejudice and without leave to amend upon the grounds that the claim was barred by the adjudications in two prior cases that had come on before different Judges of the Court from which this appeal is taken. The District Judge had before him the records in case No. 1161-57 PH and case No. 43-59 TC.

Appellant did not designate, as required by rule 75, F.R.Civ.P., any portions of those records.

This Court is, therefore, unable to decide whether or not the judgments in the said two former cases support the judgment of dismissal from which this appeal is taken.

Following the practice of this Court under such circumstances, we must presume that the evidence supports the judgment. Absent evidence in the record rebutting this presumption, the judgment must be affirmed. Reconstruction Finance Corporation v. Herring, 9 Cir., 1940, 110 F.2d 320; Bank of Eureka v. Partington, 9 Cir., 1937, 91 F.2d 587; see also Watson v. Button, 9 Cir., 1956, 235 F.2d 235.