Opinion
Rehearing Denied July 8, 1931
Hearing Granted by Supreme Court Aug. 6, 1931.
Appeal from Superior Court, Los Angeles County; Joseph P. Sproul, Judge.
Action by the City of Los Angeles against Sadie D. Griffith Abbott and others. From a judgment of dismissal, plaintiff appeals.
Affirmed.
COUNSEL
Erwin P. Werner, City. Atty., and Arthur W. Nordstrom, Deputy City Atty., both of Los Angeles, for appellant.
Hyams & Himrod and W.W. Hyams, all of Los Angeles, for respondents.
OPINION
IRA F. THOMPSON, J.
This is an appeal from a judgment of dismissal rendered in an action brought by the plaintiff for the purpose of acquiring certain property for the opening of a street. The complaint, filed November 24, 1923, is in the usual form, alleging the passage of an ordinance of intention on January 22, 1923, designated as Ordinance No. 45,501 (new series) with the object of opening, widening, and extending Mines avenue in the city of Los Angeles. The answer of the defendant Halperin put in issue the value of the property and the severance damage. On the 8th day of May, 1929, the defendant gave plaintiff notice that on the 16th day of May he would move the court for a judgment of dismissal on the ground and for the reason that the case had been abandoned. The notice further stated that the motion would be based upon all the files and records in the action and the affidavit of William B. Himrod. The affidavit in effect averred that subsequent to the filing of the answer the plaintiff had abandoned the action and had commenced another suit, which it was said was then pending. Thereafter and on July 26th the court rendered its judgment wherein it was recited that the plaintiff had abandoned the action and ordering and adjudging that the action be dismissed with costs to the defendant. It is now argued that the court erred in rendering a judgment of dismissal for the following reasons:
(1) There was no abandonment of the action by the appellant.
(2) The appellant did not abandon because the requirements for abandonment imposed by the Street Opening Act of 1903 were never complied with.
(3) Assuming an abandonment by appellant, it was not of such character as to entitle respondent to his costs under section 1255a of the Code of Civil Procedure.
(4) The court could not allow costs because it had previously enjoined appellant from paying "any costs or expenses incurred in connection with the improvement provided for by Ordinance No. 46,537 (New Series)."
The last point is the same as that determined adversely to the contention of appellant in the case of City of Los Angeles v. Abbott (Cal.App.) 299 P. 807, decided May 18, 1931, and as to this particular point appellant is concluded thereby.
However, before considering the argument of appellant upon the first three assignments we must dispose of that advanced by the respondent to the effect that we are governed solely in the disposition of this cause by the record contained in the transcript on this particular appeal; that inasmuch as there is no suggestion in that record of the pendency or disposition of an action entitled O.T. Johnson, etc., v. City of Los Angeles, and inasmuch as appellant’s theory is entirely founded upon the assumed effect of the judgment in that case, there is no necessity for us and, indeed, we have no right to determine the points thus advanced by appellant. There can be no doubt that generally speaking the court will determine the rights of the parties upon the record as it is presented upon the appeal. As an example we find this language in Reed v. Cross, 116 Cal. 473, 48 P. 491, 495: "We know from the appeal by plaintiff in the case just what the judgment roll in the former case contained, but we may not avail ourselves of that knowledge on this appeal, for the reason that, as before stated, the appeal here does not include in the record that judgment roll." It is to be observed in connection with the quoted matter that the court was there speaking of two appeals in the one action, the one numbered 53 and the other 70, and yet the record in the one could not supplement the record in the other or aid the court in the disposition of the same. Like all valid and subsisting uncodified rules of law, it is supported by sound reason and logic. Without reference in the record to the judgment upon which the appellant relies, his adversary is denied the opportunity to destroy, if he may, its legal effect. Furthermore, remembering that the rule of judicial notice is one of evidence and not of pleading, it may be added that it is not and should not be the function of an appellate tribunal to be the triers or finders of fact. Its duty is to determine whether the parties have had a fair and impartial trial in accordance with law in the court below. The rule, however, is not an inflexible one. Sewell v. Johnson, 165 Cal. 762, 134 P. 704, 706, Ann.Cas.1915B, 645, illustrates and recites the exceptions. A careful study of that authority, however, will convince the reader that the decision of this court of which we may take notice, so far as the facts therein adjudged are concerned, is one which is rendered subsequent to the taking of the appeal. As thus viewed, it falls in the same category as those instances where, by reason of some fact occurring after the appeal, the question is rendered moot, or where after an appeal from a judgment a new trial is granted. As is indicated by the concurring opinion of Mr. Justice Angellotti, to which two other justices agreed, the real question was not one of judicial notice, but rather whether such matters might be brought before the court on motion and supported by evidence outside the record. We read, however, in the opinion of Mr. Justice Lorigan, also agreed to by two justices, as follows: "The cases cited by respondent sustain the general rule relied on by him that there must, in the record on appeal to which the doctrine is invoked, be some pleading or matter referring to or involving the record and action of this court in another case before it may be judicially noticed. It will be found, however, in an examination of all these cited cases that the rule of judicial notice was sought to be invoked under circumstances where it was clear that no basis in or outside the record in the immediate appeal could be presented for its application. The parties endeavoring to have the court apply it had plainly neglected or failed in their pleadings in the court below to avail themselves of the right to have incorporated in their record on appeal the record or action in the trial court, or in this court, of another action so as to permit reliance on the doctrine of judicial notice. In none of these cases was it sought to have this court take notice of its judgment on appeal in another case intimately connected with the judgment involved in the pending appeal and directly affecting it, and where such judgment in the other case was rendered after a pending appeal was taken and no fault was attributable to the appellant in not incorporating any reference to such previous case in his record on appeal. No such situation was presented in any cited cases, and, of course, in none of them was it decided that judicial notice of the court under no circumstances could be taken in a pending appeal by proof of matters aliunde its record. It was only held that judicial notice under the rule clearly could not be taken under the circumstances presented in those cases where it was sought to be invoked." (Italics ours.) For our purposes it is immaterial whether we agree with the views of Justice Angellotti or Justice Lorigan, because they both lead to the conclusion that only in the exceptional case can the appellate court take cognizance of a judgment rendered by this court when the same is not made a part of the record on appeal. Reference is made in the opinion from which we have just quoted to Ballard v. Searls, 130 U.S. 50, 9 S.Ct. 418, 32 L.Ed. 846, and Butler v. Eaton, 141 U.S. 240, 11 S.Ct. 985, 35 L.Ed. 713, and in both of the authorities cited particular care is taken to point out that the judgment became final subsequent to the taking of the appeal and when it was impossible for the party in whose favor it ran to have alleged its existence and relied upon it in the trial court. In U.S. v. Commercial Credit Co. (C.C.A.) 20 F.2d 519, 522, we note the same basis for the exception to the general rule in these words: "While ordinarily a writ of error must be passed upon in the light of the record brought up from the court below, certain exceptions to this rule are recognized, and we think that the happenings subsequent to the suing out of the writ of error bring this case within the exceptions." (Italics ours.) As a further indication of the procedure necessary to invoke the doctrine or rule of judicial notice we quote from Roberts v. Roberts, 81 Cal.App. 499, 253 P. 1112, 1113, as follows: "The affidavit avers that by a judgment of the superior court of Alameda county, in an action between the same parties numbered 83587, as shown by the register of actions in that court, the provisions of the contract which are sought to be enforced in the instant case were adjudged to be void, and that the judgment was not appealed from, and has become final. The record does not contain a copy of the judgment, nor was the latter made a part of the affidavit except by reference. Such reference, however, was sufficient to warrant the trial court in taking judicial notice thereof (Sewell v. Johnson, 165 Cal. 762, Ann.Cas.1915B, 645, 134 P. 704); and we must presume that the implied finding as to its effect, which was adverse to the allegations of the affidavit, was sustained by the terms of the judgment (Estate of Young, 149 Cal. 173, 85 P. 145; Fonner v. Martens, 186 Cal. 623, 625, 200 P. 405; Western California Land Co. v. Welch, 41 Cal.App. 435, 183 P. 169)."
There is nothing in the instant case to bring it within the exception to the general rule, nor do we find any sound reason to extend the scope of the exception. We are consequently compelled to the conclusion that we cannot go outside the record to determine that the lower court was in error in adjudging that there was an abandonment and that the character of the abandonment was such as to justify the court in awarding respondent his costs. It might be added, however, with respect to the contention that the assumed abandonment did not comply with the provisions of the Street Opening Act of 1903, found in section 14 thereof (Deering’s Gen.Laws, 1923, Act 8198, p. 3317), to the effect that the city may abandon the proceeding which it has instituted by the passage of an ordinance so declaring, and hence the lower court was in error in determining that it was sufficient, leaves out of consideration entirely the purpose of the act providing for the recovery of costs. It is obvious that if we were to adopt appellant’s contention it would always lie with the municipality to pay or withhold costs by the simple expedient of refusing such an ordinance passage. We think it was never intended, by the section thus referred to, to do more than to empower the city to adopt such ordinance if it deemed it wise and expedient. It certainly cannot be construed to limit the authority of the court to declare an abandonment when one exists in fact.
Judgment affirmed.
We concur: WORKS, P.J.; CRAIG, J.