73 P. 830 | Cal. | 1903
This action was brought by plaintiff, a judgment creditor of defendant G.S. De Garmo, to subject to plaintiff's claim property alleged to have been fraudulently conveyed by said defendant to his wife, defendant Mamie De Garmo, and by him and his said wife to his brother, defendant W.I. De Garmo. The defendant Southern California Savings Bank, it was alleged in the complaint, claimed some interest in the property. The defendants having answered, a trial was had, and judgment was finally entered in favor of plaintiff as against G.S. De Garmo for $1,754, and interest. As to defendants Mamie De Garmo and W.I. De Garmo, judgment of nonsuit was given, and it was adjudged that plaintiff take nothing as to the Southern California Savings Bank. The plaintiff appeals from the judgment and an order denying her motion for a new trial. No complaint is made as to the judgment, except in so far as it denies plaintiff relief against Mamie De Garmo and W.I. De Garmo. As to those defendants, the judgment directs a nonsuit. The record is otherwise silent as to any motion for nonsuit made by said defendants, order of court thereon, or exception to such order. A court has authority to grant a judgment of nonsuit *174
only in certain cases specified by law. (Code Civ. Proc., sec. 581.) Every presumption is in favor of the judgment. Nothing appearing in the record inconsistent with that conclusion, it is to be presumed on this appeal that a motion for a nonsuit was regularly made by such respondents and granted by the court. An order of nonsuit as to these respondents having been made, leaving other defendants still before the court, it was proper for the court in its final judgment to include a judgment of nonsuit as to such respondents (Kennedy v. Dusenbery,
Counsel for appellant admit that a motion for a nonsuit was made and also that an order was made granting the same, and urged that an authenticated copy of the shorthand reporter's notes, filed with their closing briefs, shows that an exception was taken to such ruling of the court. A copy of the reporter's notes so filed constitutes no part of the record on appeal, and cannot be considered by this court. The law fully and definitely determines what shall be the record on appeal, and the reporter's notes are no part thereof. Constituting no part of the record on appeal, they cannot be made a part of such record under rule XIV of this *175 court, which simply provides for the correction of an error or defect in the transcript, so as to make it show the true record.
The contention of respondents that this court is precluded from reviewing the action of the trial court in granting their motion for a nonsuit must, under the authorities, be sustained.
All of the points made by appellant go to the question of the correctness of the ruling of the court in granting the motion for nonsuit. If that ruling was correct, the judgment was free from error, and, as we are precluded from reviewing the action of the court on the motion for nonsuit, it must be presumed in support of the judgment that such motion was properly granted.
The judgment and order are affirmed.
Shaw, J., and Van Dyke, J., concurred.