Garin v. Pelton

NOURSE, J. An appeal is pending in this court from a judgment of dismissal entered after the trial court had sustained, without leave to amend, defendants’ demurrer to a petition for a writ of certiorari. The transcript on appeal contains a copy of the petition, demurrer thereto, the minute order sustaining the demurrer, the judgment, the notice of appeal therefrom, and the clerk’s certificate. In this motion for diminution of the record respondents ask that the appellant he required to include in the transcript on appeal a copy of the writ and return thereto which they assert they filed in response to said writ. It appears without dispute that the entire proceedings in the superior court were confined to the hearing of the *770 demurrer to the petition and that upon the sustaining of that demurrer the court dismissed the proceedings. If the return had been before the court and had been considered for the purpose of reviewing the proceedings of the respondents, the judgment would have' been one of affirmance of those proceedings rather than a dismissal of the action. (Sec. 1075, Code Civ. Proc.) On an appeal from a judgment in certiorari either affirming or annulling the proceedings of an inferior tribunal the judgment-roll consists of a copy of the judgment attached to the writ and return. (Sec. 1077, Code Civ. Proc.) But when the proceedings are on demurrer only (the filing of which is permitted under section 1109 of the Code of Civil Procedure), the inquiry is really one as to whether the petition states facts sufficient to justify the review of the proceedings of the inferior tribunal. The effect of the filing of a demurrer under such circumstances is to adopt the petition as the return. When the cause is dismissed upon the sustaining of a demurrer without reviewing the proceedings, the petition and the demurrer thereto are a part of the judgment-roll from the judgment of dismissal. They are papers which the appellate court is required to examine on an appeal from such a judgment. (Stoner v. City Council, 8 Cal. App. 607, 612 [97 Pac. 692].) The suggestion for a diminution of the record is made under section 953 of the Code of Civil Procedure (as amended by Stats. 1921, p. 194), which provides that when it appears that a paper which was before the trial court is omitted from the record on appeal and that “an examination of such paper or record will assist in a determination of the appeal on its merits,’’ the appellate court may require its production as part of the record on appeal. Though, strictly speaking, the return in this case may have been before the trial court in that it was on file in the clerk’s office,'it is undisputed that the trial court did not consider it but based its judgment solely upon its ruling on the demurrer to the petition. Our review of the judgment being confined to proceedings had in the trial court, this return would be of no assistance to this court in the determination of the appeal. -The motion is denied. Langdon, P. J., and Sturtevant, J., concurred.