Robbins

Plaintiff sued for damages caused by having fallen into an excavation in a sidewalk in a public street of the city of Los Angeles. He was nonsuited upon the ground that it appeared that the excavation, had been made by an independent contractor acting under contract with the defendant. Plaintiff has appealed from the judgment of nonsuit under section 953a of the Code of Civil Procedure. The notice to the clerk given under that section called for a transcript of all evidence offered or received, acts or statements of the court, and all minutes of the court. In an affidavit filed by plaintiff’s counsel and certified by the clerk it appears that the hearing on the motion for nonsuit was continued from June 9, 1924, to June 23, 1924, and this is confirmed by the judgment. It also appears that on June 23 plaintiff requested and was granted leave to reopen his case; that he thereupon offered in evidence an ordinance of the city of Los Angeles relating to and regulating the making of excavations in public streets and sidewalks, and that said offer was rejected on the ground that the ordinance had not been pleaded in the complaint.

The reasons for making the affidavit are stated to be…