received any consideration greater than the, utes, it must be presumed, in support of the consideration named in said deed. She particularly pleads section 4491 of Ballinger's Code and Statutes, Laws of the State of Washington, which is in the following words: "The husband has the management and control of the community real property, but he shall not sell, convey, or encumber the community real estate, unless the wife join with him in executing the deed or other instrument of conveyance by which the real estate is sold, conveyed, or encumbered, and such deed or other instrument of conveyance must be acknowledged by him and his wife."

[1, 2] Plaintiff having failed in the first instance to plead the law of the state of Washington governing community real property, [5] As an answer to the argument of apas declared by the courts of that state, it is pellant to the effect that defendant received the contention of appellant that the law of no consideration for joining in the deed as a California, as it stood in 1916 and prior covenantor, and that there exists no legal thereto, must rule the subject, and that the reason whatsoever for holding her liable interest of the wife in the community real thereon, it may be said that not only was property must be held to be a mere expectan- there a detriment suffered by the covenantee, cy-a contingent estate, citing Spreckels v. caused by the breach of the covenant, but Spreckels, 172 Cal. 775, 158 Pac. 537. But appellant also received an interest and benethe weakness of this contention exists in the fit through her husband, who had the manfact that the appeal comes to us on the judg-agement and control of the property of the ment roll alone, and the defendant having community in and to the property that was pleaded by way of avoidance in her separate acquired by the community in the transacanswer said section 4491, Washington stat-tion. (Sections 1605 and 3304, Civ. Code.)

(229 P.)

[6] The bargain and sale deed shows upon its face that it is joint and several.

The

wife, being a joint and several obligor, could

be sued alone. Platner v. Vincent, supra; Holzheir v. Hayes, 133 Cal. 456, 65 Pac. 968. The case last cited goes to the extent of holding that section 1113, Civil Code, imposed a personal obligation on the grantor and is binding on one of them, although he may have had no interest in the land at the time of the execution of the grant. Here it is the implied admission of appellant that the wife had at least an expectancy or a contingent interest.

BELL v. BRIGANCE. (L. A. 8073.)

(Supreme Court of California. Sept. 20, 1924.)

1. Appeal and error 612 (2)-Transcript need not be certified by reporter.

Under Code Civ. Proc. § 953a, reporter's certificate, though prima facie evidence of testimony and proceedings under section 273, adds nothing to authenticity of transcript, which need be certified by judge only.

2. Appeal and error 663 (2)—Claim that transcript, not complete, held untenable as against judge's certificate attached to transcript

Claim of respondent, not appearing at time noticed for certifying transcript, to object to matters required by Code Civ. Proc. §§ 269, certification, and not pointing out omission of 953b, nor presenting supporting affidavits, that complete record had not been transmitted, held untenable as against judge's certificate attached to transcript.

3. Appeal and error 553 (2)—Reporter's transcript not rejected because he was not requested to act as official reporter by either party.

That official reporter, in attendance on court, was not requested by either party to of ficially report case, held not to require that his transcript be rejected on ground that he was not acting as official reporter, under Code Civ. Proc. 269.

4. Appeal and error

939-Certification of

reporter's transcript by judge who did not try case presumed authorized.

[7] It is the further claim of appellant that the judgment cannot be sustained for the reason that "the conclusions of law and the judgment entered accordingly are not supported by the findings of fact." This contention rests upon the fact that the court included in its findings of fact paragraph III of the defendant's separate answer which, in substance, alleged that the defendant did not join with her husband in the execution of said deed as a joint grantor, but joined in its execution at the request of her husband solely as his lawful wife, as required by the law of the state of Washington, and for the purpose of conveying to plaintiff any community interest or right she might have had therein and not otherwise; that she received no consideration whatever from plaintiff for her community interest. Appellant could have protected herself from liability as a cograntor by executing a quitclaim deed. Such deeds do not carry covenants of warranty. Allison In view of presumption, under Code Civ. v. Thomas, 72 Cal. 562, 14 Pac. 309, 1 Am. St. Proc. § 1963, subd. 16, it may be presumed that Rep. 89; Gee v. Moore, 14 Cal. 472; South-judge certifying reporter's transcript of eviern Pacific Co. v. Dore, 34 Cal. App. 521, 168 Pac. 147. Her act in joining in the deed of warranty was entirely voluntary. No claim of mistake or fraud, deceit, or imposition of any kind is pleaded or claimed in her behalf. The deed being joint and several, and the effect to be given it being determinable by the law of the state of Washington in which the real property is situated (see Platner v. Vincent, 187 Cal. 443, 202 Pac. 655; McGoon v. Scales, 9 Wall. [76 U. S.] 23, 27, 19 L. Ed. 545), leaves no doubt but that said alleged finding of fact is but an erroneous conclusion of law. This much appears from a consideration of the clear and incontro vertible provisions of the deed, and the conclusion which necessarily follows an application of the laws of the state of Washington to the question which we have heretofore considered. All intendments and presumptions being in favor of the judgment, it cannot be set aside because of an erroneous conclusion of law which is mere surplusage. Judgment affirmed.

We concur:

MYERS, C. J.; SHENK, J.; LAWLOR, J.; LENNON, J.; RICHARDS,

J.; WASTE, J.

dence taken in case tried before another judge was authorized to do so under Supreme Court rule 27, as trial judge's successor in office or judge in same or adjoining county.

5. Appeal and error 607(I)-Notice to clerk to prepare transcript within 10 days after notice of decision on motion for new trial sufficient.

Under Code Civ. Proc. § 953a, notice to clerk, within 10 days after notice of decision on motion for new trial, to file transcript, is sufficient, and subsequent notice, 27 days after denial of motion for new trial by operation of law (Code Civ. Proc. § 660), on failure to make ruling thereon within 2 months after service of notice of entry of judgment, may be disregarded.

In Bank.

Appeal from Superior Court, Los Angeles County; C. P. Vicini, Judge.

Action by Chester A. Bell against J. W. Brigance. Judgment for plaintiff, and defendant appeals. On plaintiff's motion to affirm judgment, motion denied.

William Lewis and Guy Lewis, both of Los Angeles, for appellant.

Emmet H. Wilson, of Los Angeles, for respondent.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

WASTE, J. The plaintiff brought an ac-1 of the judge is that the transcript contains tion in the ordinary form to quiet title to certain real property. The defendant answered, claiming title in himself. A decree was entered in favor of the plaintiff. Thereupon the defendant made a motion for a new trial, which was denied by operation of law, the motion not having been determined within 2 months after service of notice of the entry of judgment. Code Civ. Proc. § 660. An appeal to this court was then taken by the defendant, and the matter now comes before us on motion of the plaintiff and respondent to affirm the judgment of the trial court on the ground that there is an insufficient record on appeal. The motion is made on the record on appeal on file, and the notice of motion.

The appeal is taken on the alternative | method. The record consists of a proper clerk's transcript, and what purports to be a "reporter's transcript on appeal." From this "reporter's transcript" it appears that, when the case was called for trial, the official reporter of the court was present. The attorneys for both plaintiff and defendant announced that they did not wish the case reported. After some further proceedings, which were not reported, the attorney for the plaintiff offered a document in evidence, and counsel for the defendant objected. Thereupon the reporter took in shorthand the further proceedings, including the objection to the document offered. His certificate is that the transcript contains a full, true, and correct statement of the testimony and proceedings "from said point aforesaid."

all the testimony offered or taken, evidence offered or received upon the trial of the case, and that, upon the certificate of the reporter, and the failure of the attorneys for the parties to the action, upon due and timely notice, to offer any objections or amendments thereto, he certifies the transcript to be correct and true. The certificate of the judge is the only certificate required or provided for by section 953a, supra, and is the only authentication of the transcript to which this court will look. The reporter's certificate may have been of assistance to the judge below, being prima facie evidence of the testimony and proceedings (Code Civ. Proc. § 273), but it adds nothing to the authenticity of the transcript in question. Williams v. Lane, 158 Cal. 39, 40, 109 Pac. 873.

[2] The clerk's minutes show that only documentary evidence was received in the trial below. The respondent failed to appear at the time noticed for certifying the transcript and offer any objection to its certification. He has not pointed out a single particular in which it fails to contain the matters required by the sections of the code. Code Civ. Proc. §§ 269 and 953b. No affidavits are presented here in support of his claim that a complete record has not been transmitted to this court. His contention must therefore give way in the face of the certificate of the judge attached to the transcript. An affidavit of the reporter appended to the transcript, but which is not authenticated by the judge below, and which does not appear to have been used in any proceeding in the trial court, does not help him. The absence of a proper authentication precludes its consideration here. Waymire v. Calif. Trona Co., 176 Cal. 395, 398, 168 Pac. 563. Furthermore, if we were in position to consider the affidavit of the reporter, there is nothing in its recitals tending to contradict the certificate of the judge, that the tran

taken, and evidence offered or received upon the trial of the action, and upon the motion for a new trial made in the court below. Respondent has offered no objection to the clerk's transcript. We must conclude, therefore, that, for the purposes of this motion, the full and complete record required by law has been transmitted to this court.

[1] In moving for an affirmation of the judgment, the respondent assumes the position that the record here cannot be considered by the court for the reason that it is not presented as a bill of exceptions, and is not prepared and authenticated in the manner required by sections 953a, 953b, and 953c of the Code of Civil Procedure. His first contention is that a full and complete record | script contains all the testimony offered or has not been transmitted to the court. Section 953a provides that the stenographic reporter, on receiving the proper direction from the court, shall transcribe fully and completely the phonographic report of the trial, which is thereupon tiled with the clerk. It is then the duty of the clerk, on due notice to the attorneys appearing in the cause, to present the transcript to the judge for ap- [3] It is next contended that the reporter's proval. At the time specified in the notice transcript here should not be considered for of the clerk the judge shall examine the the reason that the reporter was not requesttranscript, and if he finds it a full, true, ed by any one to take down testimony, and and fair transcript of the matter required was therefore not acting as an official reportby the statute to be included, he shall cer- er as defined by section 269 of the Code of tify to its truth and correctness. Upon Civil Procedure. Mr. Peterson was the ofsuch certification being made, the transcript ficial reporter, and was in attendance on the becomes a part of the record on appeal. In court. So much is conceded by the respondno other way can it become such. Totten ent, and the judge of the lower court has v. Barlow, 165 Cal. 378, 380, 132 Pac. 749; certified to the fact. We attach no signifiRichmond v. Julian Cons. Min. Co., 176 Cal. cance to the circumstance that he was not 600, 169 Pac. 356. In this case the certificate | requested by either party to officially report

(229 P.)

fying to the record may in fact exist. Under section 1963, subd. 16, of the Code of Civil Procedure, there is a disputable presumption "that a court or judge, acting as such, was acting in the lawful exercise

本 *

of his jurisdiction." In a case so like the one here as to be analogous, it was held that the presumption of law just noted was sufficient to support the certificate of a judge, who did not try the case, in settling a statement on appeal, since there was a possibility that, for a sufficient reason not made to appear, the judge who did try the case did not act. Lincoln v. Sibeck, 27 Cal. App. 61, 63, 148 Pac. 967.

[5] Respondent's last objection to the consideration of the record on appeal is embodied in his contention that the notice to the clerk to prepare a transcript was filed too late. The notice to the clerk to prepare the transcript must be filed within 10 days after notice of entry of judgment, order, or decree, or, if a proceeding on motion for a new trial be pending, within 10 days after notice of decision denying said motion, or of other termination thereof. Section 953a, supra. In this case, notice of entry of judg

the case. He did report it, and the judge has certified that his transcript contains all the testimony offered or received upon the trial of the case. The record discloses that the defendant, desiring to appeal from the judgment, requested that a transcript be made up, and the court below required Mr. Peterson, as the stenographic reporter of the court, to prepare it. Mere informalities in the preparation of the typewritten record for use on appeal are cured by the due certification by the judge of the transcript which has been prepared. White v. Hendley, 35 Cal. App. 267, 270, 169 Pac. 710; In re Guardianship of Barney (Cal. Sup.) 214 Pac. 853. | [4] It is next urged that the reporter's transcript cannot be considered for the reason that it is not certified by the judge who tried the case. The action was heard before Judge Vicini, and the transcript is certified and approved by Judge York. No reason is stated or shown for this action, and the respondent contends there is no authority therefor. Section 953a, supra, does not require that the reporter's transcript, after being filed with the clerk, shall be presented to the trial judge or judge who tried the case, or that the "trial judge," or the "judgement was served and filed on the 6th day of who tried the case," shall certify to the truth and correctness of the transcript. But we may assume, for reasons at once apparent without stating them, that such was the intention of the Legislature. Rule XXVII of this court provides that, when the judge before whom an action was tried is dead, or has been removed from office, or resigns, any uncertified record, under section 953a et seq. of the Code of Civil Procedure, may be settled and certified by his successor in office, or, if he be disqualified, by a judge of the same or an adjoining county. When the judge before whom an action was tried becomes disqualified or is absent from the state, the rule further provides that such record may be settled and certified in like manner. There is no claim here, argues the respondent, that Judge Vicini, who tried, the case, is dead, has been removed from office, has resigned, has become disqualified, or was or is absent from the state. The case is therefore, he contends, not one that comes within the exceptions provided by the court rule. From this premise he argues that the certificate of any other judge is a nullity, and the record so certified must be wholly disregarded. In answer, it may be said that it does not appear here, by affidavit or other- We concur: MYERS, C. J.; RICHARDS, · wise, but that some of the circumstances J.; LAWLOR, J.; LENNON, J.; SEAWELL, which would prevent Judge Vicini from certi- | J.; SHENK, J.

October, 1923. The defendant thereupon gave notice of intention to move for a new trial, and, no ruling having been made thereon within 2 months after service of the notice of entry of judgment, the effect was a denial, on December 6, of the motion without further order of the court. Code Civ. Proc. § 660. On November 9 the defendant filed notice to the clerk to prepare a transcript. On January 2, 1924, 27 days after the denial by operation of law of the motion for a new trial, appellant filed another notice requesting a transcript. The notice filed on November 9 was a sufficient compliance with the statute, and the notice filed on January 2, 1924 may be disregarded. This court has held that the proper interpretation of section 953a permits the filing of the notice to prepare transcript at any time after notice of the entry of judgment and before the expiration of 10 days "after notice of decision" on motion for a new trial. The notice filed on November 9 was given during that period, and was sufficient. Hadacheck v. Superior Court (Cal. Sup.) 223 Pac. 71.

The motion to affirm the judgment is denied.

DEWHIRST v, LEOPOLD et al.

10492.)

(S. F.

(Supreme Court of California. Sept. 15, 1924. Rehearing Denied Oct. 14, 1924.)

1. Negligence sufficient.

111(1)-General averment

7. Damages 34-Defendant not relieved from liability for condition resulting from negligence or incompetency of surgeons not carelessly selected by plaintiff.

That infection and necrosis following injury was attributable to intervening malpractice or error of attending surgeons does not relieve person causing injury from liability therefor, in absence of evidence that plaintiff failed to exercise reasonable care and diligence in selec

It is sufficient to plead negligence in gen- tion of surgeons of ordinary competency and

eral terms.

2. Trial 109-Admission of evidence as to negligence not pleaded held not prejudicial to defendant, in view of opening statement.

In pedestrian's action for injuries from automobile, admission of evidence as to whether defendant passed to right of machine in front of him, which was not specially pleaded, held not prejudicial to him in view of opening statement of plaintiff's counsel that he would rely on such wrongful passing as proximate cause of injury.

3. Trial 251 (8), 255 (11)-Failure to instruct as to motor vehicle driver's duty to bear to right for overtaking automobile held not error.

Failure to instruct as to duty of defendant automobilist, striking pedestrian while passing to right of machine ahead, under Motor Vehicle Act 1913, § 20(d), to give way to right in favor of overtaking vehicle, held not error, in absence of request therefor or claim by defendant that injury was caused by his attempting to do so.

4. Trial 296 (3)-In automobile accident oase, instruction that violation of state law is negligence held not error, in view of other Instructions.

In action for injuries to pedestrian, struck by automobile passing to right of machine, ahead, instruction that failure to perform duty imposed by state law is negligence in itself held not error, in view of instructions on contributory negligence, and necessity of showing that such violation was immediate and proximate cause of injury.

5. Appeal and error

1066-Instruction as to rate of speed in business districts held not prejudicial error, because of lack of evidence of place of accident.

skill.

8. Damages

191-Amounts paid for medical treatment sufficient evidence of reasonable value, in absence of contrary showing.

Amounts paid for medical treatment and attention are some evidence of reasonable value thereof, and sufficient in absence of showing to contrary.

9. Trial 260(1)—Refusal of instructions covered by charge given not error.

Refusal of instructions, fully covered by fair and comprehensive charge given, is not error.

10. Appeal and error 1002-Jury's finding on conflicting evidence not disturbed, if sustained by substantial evidence.

Jury's finding of actionable negligence on sharply conflicting evidence cannot be disturbed by reviewing court, where sustained by some substantial evidence.

Myers, C. J., dissenting.

In Bank.

Appeal from Superior Court, City and County of San Francisco; Franklin A. Griffin, Judge.

Action by Fred Dewhirst against August Adolph Leopold and others. From a judgment against the named defendant, he ap peals. Affirmed.

J. J. Lermen and G. K. Burgren, both of
San Francisco, for appellant.
Ford & Johnson, of San Francisco, for re-
spondent.

SEAWELL, J. Appeal from a judgment awarding respondent damages in the sum of $2,100 for personal injuries sustained by reason of being struck by an automobile operated by appellant August Adolph Leopold. The action was dismissed as to Emma Leopold, his wife, and the fictitious defendants. The injury was inflicted September 23, 1915, and the action was not tried until six and a half years thereafter.

That no evidence was received as to whether injury to pedestrian from automobile occurred in business district held not to render reading to jury of portion of Motor Vehicle Act of 1913 regulating speed within such district harmful, in view of concessions of counsel and of assumptions by court and witnesses. Respondent, a mechanical engineer, suf6. Appeal and error 1001(1)—Implied find-fered a fracture of the left arm near the ings, supported by evidence on issue fully and fairly submitted, not disturbed.

Jury's implied findings, supported by ample evidence, that infection and necrosis following injury were not result of plaintiff's negligence in selecting physician and surgeon, cannot be disturbed on appeal, where question was sub. mitted on full and fair instructions.

shoulder, by being struck by an automobile operated by appellant. The arm became infected, and a necrotic condition developed, requiring the removal of a portion of the bone. Other operations of minor importance were performed. Respondent further suffered a financial loss of several hundred dollars in wages, and became liable for quite

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