Jenkins v. Zimmerman

Plaintiffs sued to restrain the erection of an apartment house by the defendant on the theory that the plans and specifications did not provide sufficient air space as contemplated by the State Housing Act. [Stats. 1923, p. 781.] Upon the hearing of plaintiffs' motion for a temporary injunction two affidavits were filed by the defendant. It does not appear whether any oral testimony was taken, but the record discloses an order of the trial judge dismissing the order to show cause after a hearing.[1] From this order the appeal was taken and has been presented on a typewritten record, certified by the clerk, but not by the trial judge. Though the reporter was ordered to prepare a transcript, none has been filed. The record is plainly insufficient to warrant a review by this court. (Code Civ. Proc., sec. 953a; Jeffords v. Young, 197 Cal. 224 [231 P. 724], and cases there cited.)

[2] Furthermore, the notice of appeal states that it is taken from the order refusing to grant appellants an injunction, but the record does not contain a motion for the injunction or any information as to the grounds upon which the motion was made. It does appear that two affidavits were filed "in opposition to motion for injunction." Assuming that these affidavits were before the trial court on the hearing, they were sufficient to support the order denying an injunction and in the absence of any other showing we cannot say on this record that error occurred.

Order affirmed.

Sturtevant, J., and Langdon, P.J., concurred.