277 P. 369 | Cal. Ct. App. | 1929
The plaintiff was a member of the fire department of San Francisco. He was served with written charges of misconduct and with a notice of the trial of the charges before the defendant board. A trial was had. Witnesses were called, sworn and examined and later the defendant board rendered its decision finding the plaintiff guilty as charged and entered an order dismissing him from the department. On September 24, 1917, the plaintiff applied to the trial court for a writ of review. A return on *631 said writ was not filed until August 30, 1927. Shortly after the return was filed the plaintiff made a motion for judgment based on the return. The motion was granted and a judgment in favor of the plaintiff was entered. From that judgment the defendants have appealed and have brought up a typewritten record.
The plaintiff claims that the charge placed against him was not proved by competent evidence. The return purports to contain a copy of "The Journal of the Proceedings of the Board of Fire Commissioners," which purports to contain some of the evidence taken by the defendant board, but it likewise appears that it does not contain all of the evidence. When the return was made it showed on its face that it did not include all of the evidence. When that fact appeared the plaintiff was at liberty to apply for "a further return." (Code Civ. Proc., sec. 1075.) If he had done so the question would then have arisen as to whether the evidence taken below had been preserved. If it had been, "a further return" would have been ordered. If it had not been preserved one of two possible situations would have been presented. If "jurisdictional facts" were involved "a further return" would have been ordered for a duty rests on the respondent board at all times so to keep its records as to show the existence of "jurisdictional facts." (Stumpf v. Board of Supervisors,
[3] The plaintiff asserts that the charges against him were not proved by competent evidence. The return does not show the fact. The most that can be said is that the return shows some competent evidence and does not show an absolute want of competent evidence. We may not assume from the return as made that other competent evidence was not introduced. (Hagenmeyer
v. Mendocino County,
The defendant board cites Roberts v. Police Court,
For the reasons stated above the judgment is reversed.
Koford, P.J., and Nourse, J., concurred.