18 P.2d 749 | Cal. Ct. App. | 1933
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *189 THE COURT.
This action was brought to quiet plaintiff's title to two parcels of land. A trial was had and evidence both oral and documentary introduced. Findings of fact and conclusions of law were waived and a decree was entered adjudging that the defendant A.J. Barnes was the owner in fee of one of said parcels of land. This is an appeal by the plaintiff from said judgment.
It is the contention of the respondent Barnes that this is an appeal upon the judgment-roll alone, while appellant claims that the record is presented in accordance with the provisions of section 953a et seq. of the Code of Civil Procedure. [1] An examination of the record discloses that the clerk of the court, in addition to certifying to the judgment-roll and to the notice of appeal, has also certified to the correctness of about twelve documents that were introduced in evidence and which should be part of the reporter's transcript. It has been held that such certification by the clerk is unauthorized and insufficient to justify an examination of said documents by the appellate court. (Jeffords v. Young,
The court has no authority to certify to the clerk's transcript, but as to the other matters included in the transcript they should be certified by him. (Code Civ. Proc., sec. 953a et seq.) However, the officers, in addition to certifying to the correctness of such portions of the record as the law requires them to certify to, have also certified to the correctness of other portions of the transcript. The certification to the latter is mere surplusage and does not vitiate the record. It is true that the record before the court discloses many departures from the provisions of the law relating to records on appeal under the alternative method. Had counsel for respondent made timely objections thereto, the trial court would no doubt have corrected such errors. We find in the record that counsel entered into the following stipulation: "We hereby stipulate that the foregoing is a full, true and fair transcript and contains all the documentary record." We have concluded that under the stipulation of counsel and the certificate of the court we will consider the record as one presented under the alternative method and pass upon such questions as are properly before us. (Pierce v. Works,
[3] It is assigned as error that the court should have granted the appellant a continuance for the purpose of obtaining and introducing in evidence the published delinquent tax list of the county of Los Angeles for the year 1913, which covers the property in controversy and upon which respondent's title is based. This alleged error cannot be reviewed, because the testimony taken at the trial has not been brought to this court, hence there is nothing to show that such application was ever made to the court, or the ground upon which the continuance was refused, or that the court abused its discretion.
[4] It is next urged that said delinquent tax list, as published, failed to state the amount of penalties due, and for that reason the tax deed of defendant Barnes, which is based upon the sale for the year 1913, is void. As the court refused a continuance to permit the plaintiff to obtain and offer such delinquent tax list in evidence we cannot consider it in the light of an offer of evidence which was made at the trial and refused admission by the court. Such *191 offer, so far as the record before us is concerned, was never made.
[5] A portion of the taxes levied against this property for the years 1913 and 1914 was for the maintenance of the Panama-Pacific International Exposition held in San Francisco in 1915. It is claimed that the law under which said tax was levied is unconstitutional and therefore the tax deed issued to the respondent Barnes is void because the property was sold for a sum of money in excess of the amount actually due. This contention is based upon the fact that the act providing for the levy (Stats. 1911, chap. 109, p. 273) provides in section 16 thereof that such an amount of tax shall be levied upon all the taxable property in the state "as when levied upon all of the property in this section mentioned, after making due allowance for delinquency, shall raise for each of said fiscal years, the sum of $1,250,000.00". It is argued by appellant that as the amount of delinquency is not fixed in the act, but is left to the judgment of the board of equalization, it confers on the latter body a legislative function. He cites in support of this view,Houghton v. Austin,
[6] It seems to be a further contention that, as shown by a letter from the controller of the state of California, the amount of taxes raised in 1913, for exposition purposes, was about $23,000 in excess of the $1,250,000 fixed by the act, and about $20,000 in excess of the $1,250,000 provided for the year 1914; that the property here in issue was therefore sold for a sum in excess of the amount actually due and for that reason the respondent's tax deed based upon *192 such sale is void. To give full force to the contention of appellant it would mean that where an estimated delinquency was too large and more money was collected than the exact amount required, the whole tax would be void. The result would be that any tax levy would be invalid where a greater amount was raised than that actually called for. There is no merit in the contention.
[7] Appellant also complains that during the progress of the trial the respondent Barnes admitted the record title to the parcel of land in dispute was vested in defendant Hannah Metzler; that appellant made a motion to enter the default of said Hannah Metzler which motion was granted by the court; that through this stipulation and the entry of the default as above stated, the appellant became vested with all of the title to said land. It is a sufficient answer to say that the record fails to disclose any such stipulation or any default of said Hannah Metzler, but, on the contrary, it does appear from the judgment-roll that there is an answer on file by said Hannah Metzler in which she denies that appellant is the owner of said land and claims ownership in herself. If any such stipulation was made or default entered, and it was the desire of the appellant to rely upon them, it was his duty to see that they were embodied in the record so that the court could consider them.
[8] Appellant also complains of the order of the court denying his motion for a new trial. He claims that the court erred in not permitting him to produce the published delinquent tax list of Los Angeles County for 1913 and introduce the same in evidence. We have already adverted to the fact that the record is silent as to the reason of the court in denying his application for a continuance to produce said record. Such action of the court is therefore not properly before us on this motion for a new trial. There was no error in denying the said motion.
[9] There is one other reason why the appellant cannot prevail in this action. Plaintiff's alleged title to the land is based upon a deed from N.T. Powell, treasurer of the city of Los Angeles, executed and delivered after a sale of the property for nonpayment of a street improvement bond, after the Street Improvement Act, approved February 27, 1893, and all acts amendatory thereof. It is admitted that by said act a purchaser must give notice to *193
redeem, which notice must, where the premises are unoccupied (and the premises in question were unoccupied), be posted on the premises in a conspicuous place, and that proof must be made that the notice was so posted. In Thomas v. Peterson,
An examination of the proof of posting in the case at bar shows that it is identical with the proof made in the Thomas case.[10] It is also settled that in an action to quiet title a party may not have a decree because of the weakness of his adversary's title. He must prove a title in himself. (Biaggi v.Mainero,
The judgment is affirmed.
