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Luftenburg v. Luftenburg

Court of Appeal of California, Fourth District
Dec 10, 1942
56 Cal.App.2d 61 (Cal. Ct. App. 1942)

Summary

In Luftenburg v. Luftenburg, 56 Cal.App.2d 61 [ 132 P.2d 34], which was heard on a motion to dismiss an appeal from an order denying a motion to vacate a judgment, the court said: "The only certificate attached to the record is that of the county clerk, who certifies that the copies in the transcript are true and correct copies of the originals in his office.

Summary of this case from Culver v. Culver

Opinion

Docket No. 3077.

December 10, 1942.

APPEAL from an order of the Superior Court of Fresno County refusing to vacate a judgment. Andrew R. Schottky, Judge assigned. Appeal dismissed on motion.

N. Lindsay South for Appellant.

L.B. Hayhurst for Respondent.


THE COURT.

This is an action for partition of real property, the defendant having filed a cross-complaint seeking to quiet her title in and to all of the property. A judgment in favor of the plaintiff was entered on April 7, 1942. The defendant moved to vacate and set aside the judgment, which motion was denied on August 23, 1942. On August 26, 1942, the defendant appealed from the order denying this motion. A clerk's transcript was filed on September 25, 1942, and the appellant's opening brief was filed on October 26, 1942. Thereafter, the respondent gave notice of motion to dismiss the appeal on the grounds that no record on appeal has been filed as required by rule XXIX of the Rules for the Supreme Court and District Courts of Appeal, and that the order appealed from is not an appealable order. The motion to dismiss was made and submitted on the record and the moving papers.

[1] The only certificate attached to the record is that of the county clerk, who certifies that the copies in the transcript are true and correct copies of the originals in his office. There is no certificate by the trial judge and nothing to show that the documents appearing in the clerk's transcript were used or considered on the hearing, or that the court's decision was not based upon others which are not in the record. There is, therefore, no record upon which the appeal could be considered or decided. Under these circumstances the motion must be granted. ( Kwon v. Kwon, 39 Cal.App.2d 232 [ 102 P.2d 808]; Bartholomew v. Cross, 42 Cal.App.2d 28 [ 108 P.2d 49]; Svoboda v. Lambert, 43 Cal.App.2d 378 [ 110 P.2d 1022].)

The appeal is dismissed.


Summaries of

Luftenburg v. Luftenburg

Court of Appeal of California, Fourth District
Dec 10, 1942
56 Cal.App.2d 61 (Cal. Ct. App. 1942)

In Luftenburg v. Luftenburg, 56 Cal.App.2d 61 [ 132 P.2d 34], which was heard on a motion to dismiss an appeal from an order denying a motion to vacate a judgment, the court said: "The only certificate attached to the record is that of the county clerk, who certifies that the copies in the transcript are true and correct copies of the originals in his office.

Summary of this case from Culver v. Culver
Case details for

Luftenburg v. Luftenburg

Case Details

Full title:J.C. LUFTENBURG, Respondent, v. MABEL LUFTENBURG, Appellant

Court:Court of Appeal of California, Fourth District

Date published: Dec 10, 1942

Citations

56 Cal.App.2d 61 (Cal. Ct. App. 1942)
132 P.2d 34

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Culver v. Culver

Wynecoop v. Superior Court, 17 Cal.2d 657 [ 111 P.2d 332] and cases cited on page 658. In Luftenburg v.…

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In support of said motion respondent cited Rules on Appeal, Nos. 4, 6, 7, 8, 9 and 10 only; but on the day of…