Rose v. Superior Court
112 P.2d 713
Cal. Ct. App.
1941
Check Treatment

ARTHUR BRIGHAM ROSE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

Civ. No. 13109

Second Dist., Div. One.

April 30, 1941.

34 Cal. App. (2d) 599

Both decrees are adverse to the objector. Appellant has not by bill of exceptions or otherwise brought up a record of evidence on either hearing. In the absence of a record, it must be presumed that the evidence introduced at the first hearing was sufficient to support the decree of distribution entered, and that the court disregarded incompetent evidence. (

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Under the circumstances of this proceeding, particularly the lapse of time between hearings and orders, and the necessity of passing upon supplemental accounts, it may not be said that the procedure was improper or that appellant has been prejudiced except through its own failure to present a proper record on this appeal.

The decree appealed from is affirmed.

Peters, P. J., and Knight, J., concurred.

A. Brigham Rose, in pro. per.

WHITE, J.- I vote to deny the petition, primarily on the reasoning and holding in

. In the instant case it appears from the petition before us that after an order to show cause in re contempt had been issued, petitioner appeared in response thereto and offered to present his defense, which right, he claims, was denied him, and that he was thereupon found guilty of contempt. He bases his defense, according to the claims of his petition, upon the irrelevancy and immateriality of the questions propounded to his client and which petitioner advised his client not to answer. Under the cited case, it appears to me that his remedy was by way of certiorari or habeas corpus. In my opinion, these remedies remain available to petitioner should the court proceed to pronounce judgment.

Furthermore, in any petition for certiorari, habeas corpus or prohibition presented under the facts of this case, we should be furnished with a copy of the pleadings in the litigation in question, together with a copy of the deposition containing the disputed questions and answers, as well as a copy of the affidavit upon which the order to show cause in re contempt was issued. In determining the materiality, com-petency or relevancy of the questions upon which the order to show cause in re contempt was predicated, we must of necessity have before us the foregoing documents. In the instant petition we are not furnished with them.

YORK, P. J., Concurring.- The petition is denied for the reason that it does not even purport to give all the proceedings had in the respondent court, but only such portions of the pleadings, affidavits and proceedings as the petitioner wants to direct our attention to. Only the conclusion of petitioner is given us as to what the controversy is about, parts of evidence are set out only, but the conduct of petitioner at the taking of the deposition, as set out in the part of the proceeding before the notary, shows conclusively that petitioner did not confine his objections to the legal objections provided by law.

In the absence of copies of the complaint and answer and a full showing of the proceedings before the trial court and the notary, especially a full copy of the affidavit in re contempt, and as Exhibit “A” is not complete in that the transcript referred to therein is not made available to this court, we are without authority to grant the petition.

Under the facts alleged in the petition, it is impossible for any court to decide whether or not the petitioner is, or might hereafter be, entitled to any remedy, without the court being first fully informed of the proceedings had in the trial court.

Doran, J., concurred.