Goodman v. Minear Mining & Milling Co.

McBkede, G. J.,

delivered the opinion of the court,

Cum-mins, J., concurring.

This appeal is taken from the ruling of the court below on a motion made by defendant to set aside a judgment obtained by default in favor of plaintiffs, which judgment appears to have been for the sum of four hundred and seventy dollars and eighty cents and costs, as set forth in the notice of appeal.

It does not appear that any exception was taken to the ruling of the court on the motion, and as the whole ground of the appeal is upon that ruling, under the rule announced in the case of Lamkin v. Sterling at this term, the appeal must be dismissed. We may add to the authorities mentioned in that decision, the case of Smith v. Curtis, 7 Cal. 584.

Appeal dismissed, and the judgment below affirmed.

Cummins, J., delivered the opinion of the court on the petition for rehearing, McBeide, O. J., concurring.

The appellant petitions for a rehearing of this cause on the alleged ground that the j udgment dismissing the appeal and affirming the judgment of the court below, was erroneous. The appeal was dismissed in this court for the reason that the appellant had taken no exception to the ruling of the court below denying the motion to set aside the judgment and open the default. The decision was given upon the authority of the case of Lamkin v. Sterling, ante, decided at this term, in which we took occasion to examine all the accessible authorities bearing upon this question. On a further examination of the authorities required by this petition, we are confirmed in our exposition of the law made in that case. It is the better rule of practice, and often narrows down the number of issues presented for examination in the appellate court.

But even if we were to consider the ease upon the record brought into this court, waiving the want of a bill of exceptions, we can not see. that a different result would be attained. The judgment debtor appeals from the judgment rendered in the ease, together with the order above referred to, but no part of the judgment roll proper is brought up. Tet the appellant complains of the sheriff’s return of his service of the summons and complaint upon the defendant as being insufficient in several respects.

We are unable to ascertain from the record what the return is; it does not disclose anything even purporting to be the return of the sheriff. It is also complained that an amendment was made to the return, but that there is no record entry of the court granting the sheriff the privilege of making an amendment. This mode of taking appeals can not be tolerated. An appellate court will not presume error in the court below, and thus throw the- onus on the respondent of establishing its correctness. “All intend-ments must be in favor of sustaining the judgments of courts of original jurisdiction, and to disturb such judgment, it is not sufficient that error may have intervened, but it nmst be affirmatively shown by the record.” (White et al. v. Abernathy et al., 3 Cal. 426.) Not having, as already remarked, incorporated into the transcript any part of the judgment roll, including the sheriff’s return, nor all the journal entries in the case, as appears from the no-ticu of appeal, we can not saj that any error was committed in the court below. Under section 249 of our civil practice act, a party appealing from a final judgment, which is this case in part at least, shall furnish the appellate court with a copy of the judgment roll, and the statement annexed, if there be one. And if the appellant fail to furnish the requisite papers, the appeal may be dismissed. But, further, there is no certificate of -the clerk or judge that the affidavits copied into the transcript were those used on the hearing of the motion in the court from which this appeal is taken, which is necessary.

Petition for rehearing denied.