Opinion
L.A. No. 2253.
August 13, 1909.
APPEAL from a judgment of the Superior Court of Santa Barbara County. Walter Bordwell, Judge presiding.
The facts are stated in the opinion of the court.
Ralph W. Schoonover, for Appellant.
G.H. Gould, for Respondents.
This is an appeal from a judgment in favor of defendants. The plaintiff as trustee for Addie L. Allen, a bankrupt, seeks recovery for the alleged fraudulent conversion of property belonging to the firm of A.C. Williams Co., in which Mrs. Allen was a partner. The complaint contains averments to the effect that on April 22, 1905, while Addie L. Allen's petition in bankruptcy was pending before the federal court, the defendants unlawfully conspired to take certain personal property of A.C. Williams Co. situated at the dairy of said firm, and by means of a sale thereof, to convert it to their own use and benefit by applying it to the satisfaction of a pretended debt of defendant Williams, and thereby to hinder, delay, cheat, and defraud said Allen, her individual creditors and the creditors of the firm of which she was a member, and to prevent her and these creditors from subjecting said property to their just claims.
The answer, after traversing the material allegations of the complaint, set up by way of defense a certain chattel mortgage given by Williams and Allen in November, 1904, to secure the payment of a note in favor of Tanner, signed by Williams and his wife; and it is averred that on the thirty-first day of March, 1905, Tanner, in accordance with the terms of said mortgage lawfully took possession of the property described therein; advertised it for sale according to law; and that a portion of it was sold at public auction on the twenty-second day of April, 1905, to satisfy the said note. Another defense is urged, based upon a judgment dated May 13, 1905, in an action for an accounting brought by Allen against Williams, by which the court found that, in an accounting including all matters up to May 1, 1905, Allen was indebted to Williams in the sum of $561.07. This judgment is pleaded by way of estoppel of plaintiff's claim for any sum due from defendants, or any one of them, to plaintiff's bankrupt. According to the averments of the complaint, Mrs. Allen's petition in bankruptcy was filed on April 12, 1905; she was adjudged a bankrupt on December 5, 1905, and the appellant herein was subsequently selected as sole trustee of her estate. It will be seen that the date upon which Tanner received the property, according to the allegations of the answer, was before the filing of Mrs. Allen's petition in bankruptcy, but that the sale mentioned in both pleadings occurred after the petition had been presented to the United States district court.
Respondents call our attention to the fact that although the transcript contains a large number of pages of purported testimony certified by the court reporter, there is no properly authenticated bill of exceptions. Appellant freely admits that he has neither prepared a bill of exceptions nor has he given the notice prescribed by section 953a of the Code of Civil Procedure, nor observed any of the other requirements of that section. The contention in this behalf is that, although no express method of bringing up the record is provided by sections 941a, 941b, and 941c of the Code of Civil Procedure, there is an implied power derived from the provisions of those sections to bring up the testimony as appellant has sought to do here. This position is wholly untenable. The sections just mentioned provide a method whereby appeals may be taken without the necessity of service of notice upon opposing parties or attorneys. When such notice is filed the cause is transferred to the appellate court without any further action on the part of appellant. It is provided that appeals taken by this method shall have the same force as those taken pursuant to the provisions of sections 939, 940, and 941 of the Code of Civil Procedure, "provided, however, that any question may be reviewed therein, which question could be reviewed upon an appeal taken pursuant to the provisions of section 939 of this code and within sixty days of the rendition of judgment." But section 939 of the Code of Civil Procedure provides for the time within which certain appeals may be taken. It contains no scheme for certification of the testimony in the case. That is furnished elsewhere in the code. If appellant's contention was correct, appeals might have been taken under section 939 of the Code of Civil Procedure before the adoption of the new sections 941a, 941b, and 941c, in 1907, and the testimony might have been considered without the necessity of a bill of exceptions or statement of the case; but the universal practice has been to follow those sections of the Code of Civil Procedure which provide for the due presentation, settlement, and authentication of such record of the testimony and proceedings. Even if the implied right for which appellant contends were conferred by the cited sections, the certificate of the shorthand reporter would not be sufficient. Nowhere is there provision for such certificate. The court or the judge alone is given power to make such a record authentic. But clearly the right to appeal from a judgment, order, or decree by the filing of appropriate notice with the clerk does not relieve appellant from the necessity of having either a statement or a bill of exceptions settled and certified; or having a transcript approved by the court as provided in section 953a of the Code of Civil Procedure, if he would have the court to which the appeal is taken consider the testimony as well as the judgment-roll. Section 953a itself indicates this when it points out two methods whereby one who desires to appeal or who has appealed from any judgment, order, or decree, may have the testimony sent to the higher court. This section was approved on the same day as sections 941a, 941b, and 941c of the Code of Civil Procedure. They all form a part of a scheme, or rather schemes of appeal, and are to be read together. We cannot consider the purported testimony which was erroneously inserted in the transcript. (Sutton v. Symons, 97 Cal. 475, [32 P. 588].)
It is stipulated by counsel that the judgment-roll is set forth on designated pages of the transcript and that it consists of "the pleadings, the orders made on demurrers and copy of the findings and a copy of the judgment herein, and that the judgment-roll herein contains no other document than those above named."
The findings and judgment are in accordance with the allegations of the answer, except that the court did not find with reference to the alleged estoppel of the judgment in Allen v. Williams. This was not necessary if the judgment on the other causes of defense is correct, and we hold that it is. There are findings that on April 12, 1905, Addie L. Allen and A.C. Williams each owned an undivided one-half interest in a certain dairy in Santa Barbara County and in the assets of such business subject to an accounting between the partners and payment of debts; that the averment of the complaint with reference to the bankruptcy proceedings and the appointment of appellant as trustee are true; and that the allegations of conversion are untrue. As there is no bill of exceptions, we are bound to conclude that the evidence justifies and sustains the findings. (Mock v. City of Santa Rosa, 126 Cal. 340, [ 58 P. 826].) Additionally the court found that on November 18, 1904, Williams and his wife made a note for two thousand dollars payable to defendant Tanner or order before March 15, 1905, and that said Williams and said Allen executed the chattel mortgage which was copied in the answer; that the note was not paid when due; that Tanner took possession on March 31, 1905, of the personal property described in said mortgage and no other property of the firm or either of its members; that after due advertisement and actual notice to Allen and Williams, Tanner sold some of said property at public auction for the highest obtainable price; that the money so obtained was applied to the payment of the note, interest, and expenses of sale, and that the balance was paid to Williams; and that the property unsold was returned by Tanner to the copartnership. The court concludes, as matter of law, that the seizure, the sale, and the application of the proceeds were all in accordance with law.
We think the conclusions of law are thoroughly justified by the findings. The bankrupt's petition could only affect the bankrupt's property, and where the partnership is solvent could only give the bankrupt the right to have the solvent partner account. (Bankruptcy Act 1898, sec. 5h, [U.S. Comp. Stats. 1901, p. 3424].) But the bankrupt had no right to the possession of the mortgaged property at the time she filed her petition. The possession under the terms of the mortgage related to its date. As the seizure was authorized by the terms of the mortgage and lawful possession was taken of the property before the filing of the petition in bankruptcy, it follows that the trustee had no power to sue either for the chattels or their equivalent. (Perkins v. Maier Zobelin, 133 Cal. 496, [ 65 P. 1030].)
The judgment is affirmed.
Henshaw, J., and Lorigan, J., concurred.
Hearing in Bank denied.