Opinion
Civil No. 4497.
Filed December 14, 1942.
APPEAL AND ERROR. — Where the evidence on which defendant in quiet title action relied to prove his title to realty was not before Supreme Court, it would be assumed evidence supported judgment appealed from, and in the absence of any fundamental error disclosed by the record, judgment quieting title in plaintiffs would be affirmed.
See 2 Cal. Jur. 867; 3 Am. Jur. 489.
APPEAL from a judgment of the Superior Court of the County of Cochise. Gordon Farley, Judge. Judgment affirmed.
Mr. John F. Ross, and Mr. Henry W. Beumler, for Appellant.
Mr. Frank E. Thomas, for Appellees.
This action is one to quiet title. The plaintiffs, H.A. House and Nina House, his wife, as the owners of the property involved, brought such action against the defendant, Border Gypsum Construction Company, which claims title by virtue of a tax deed from the state. The only question for our decision is the sufficiency and regularity of the tax proceedings under and by virtue of which the defendant claims title. Under the facts as presented to the trial court, such court came to the conclusion that the plaintiffs should have their title quieted as against defendant and rendered judgment accordingly. From such judgment this appeal is prosecuted by the Border Gypsum Construction Company.
The case was tried to the court without a jury. Much of the evidence, in fact most of it, was documentary. Instruments of title or claimed title were introduced from the office of the county recorder, also from the offices of the county assessor and county treasurer, to show that the property was properly assessed for taxes for the years 1930 and 1931 and that the taxpayer had permitted the taxes to become delinquent and the property to be sold therefor. However, none of these documents (originals or copies) is in the files, though during the trial it was stipulated by counsel with the court's permission that certified copies would be substituted for the originals.
The clerk of the superior court, in a statement dated January 7, 1942, accompanying the record sent to this court by him, makes this statement (among others):
"On August 25, 1941, when the defendant filed notice specifying papers on appeal, he specified `all exhibits,' and as there were no exhibits on file in this office, they could not be transmitted. The record on appeal, excepting the exhibits, was prepared and ready to be transmitted to the Supreme Court on September 4th, 1941. I contacted counsel in regard to the exhibits, and this office was requested by counsel for both parties, to hold up transmitting the record until the copies were made up and filed. To date the copies have not been filed, and the record has been held up pursuant to the request of counsel."
The evidence upon which defendant depends to prove its title to the property is not before us. In such case we assume it supports the judgment.
An examination of the record for fundamental error discloses none.
The judgment of the lower court is therefore affirmed.
LOCKWOOD, C.J., and McALISTER, J., concur.