Rogers v. Parish , 35 Cal. 127 ( 1868 )

By the Court, Rhodes, J. :

There is nothing in the transcript to identify the affidavits as those read on the hearing of the motion; but objection on that ground is waived by the failure to present it according to Rule XIII of this Court.

The judgment roll, the writs, and other documentary evidence mentioned in the transcript cannot be considered on this appeal, because there is no statement, nor anything purporting to be a statement, of the evidence, settled and certified or agreed- to, as is required when the case is presented upon other evidence besides the affidavits. (Wetherbee v. Davis, 33 Cal. 549.) Objection on this ground is not required to be taken under Rule XIII, for, if it had been taken, the defect could not have been remedied by the appellant. He could not have supplied the omission had it been pointed out, because there was no statement in the Court below. This defect is fatal to the appeal.

The appeal was taken before the order was made. The order entered by the Clerk, that Lyons he restored to the possession, was unauthorized; and the order which was made by the Court, directing Edgar W. Parish as the tenant of Lyons to be restored to the possession, was made after the appeal was taken. That order is the only one that can be regarded as the order of the Court.

Waiving these objections, the appellant must fail on the merits. Neither Lyons nor his tenant, Edgar "W. Parish, were parties to the action in the County Court of Rogers v. Parish, nor did either of them enter upon the premises under Isaac Parish, the defendant. They were not, therefore, bound by the judgment in that action, nor amenable to the writ of restitution issued upon the judgment. (Wattson v. Dowling, 26 Cal. 124; Long v. Neville, 29 Cal. 135.)

Order affirmed.