The appeal here presented is from an order denying the petition of Hattie E. Allen, as the widow of the decedent, under section 1723 of the Code of Civil Procedure, to obtain a decree declaring that the homestead of herself and said decedent, declared and filed by her alone, during their marriage, upon a certain lot of land, said lot being her separate property, has vested in her as the surviving spouse.
Opposition to her petition was made by the respondent as guardian of the child of the decedent and also as executor of the estate of the decedent. Thereupon there was a trial of the cause, evidence oral and documentary was introduced, the court made findings to the effect that the declaration of homestead on the lot had been duly filed as alleged, and that subsequently, during said marriage, the petitioner and Clark P. Allen, her husband, abandoned the homestead by executing, *Page 355 acknowledging, and causing to be duly recorded their deed conveying said lot in fee to Harriet E. Winslow. Thereupon the order was made denying the petition.
The record does not set forth the evidence given at the trial upon which the court found that the homestead had been abandoned. The clerk and the judge of the superior court each certify that the record contains true copies of certain documents on file in the cause, but the certificates do not state that these comprise all the documents used at the hearing, or that no other evidence was introduced. The findings state that oral testimony was given. It does not appear that the appellant ever gave to the clerk the notice required by section 953a of the Code of Civil Procedure, specifying the papers to be included in the transcript, or requesting a transcript of the testimony. Hence there is no affirmative showing that she was entitled to a reporter's transcript of the testimony, or to a clerk's transcript of papers on file. (Schmitt v. White, 172 Cal. 554, 559, [158 P. 216]; Pierce v.Works, 171 Cal. 684, 687, [154 P. 852]; Hibernia Sav. etc.Soc. v. Doran, 161 Cal. 118, [118 P. 526].) There is no bill of exceptions. All presumptions are in favor of the action of the court below. Error must be affirmatively shown by the record. The finding that the homestead was abandoned is sufficient to defeat the petitioner's claim and to support the order appealed from.
The order is affirmed.
Victor E. Shaw, J., pro tem., and Sloss, J., concurred. *Page 356