*1 though temporary disa- under of the bar member mains peti- suspension period bility. At the end of the definite without fur- again practice law entitled to would be tioner conclusion, body. This other of this court order ther aby presented situation course, directed to the factual Upon disbar- distinguished from a disbarment. suspension as from attorney required to be stricken the name of ment 6117.) Act, He ceases attorneys. (State Bar sec. roll of resulting disability bar, and the to be a member of the unless removed complete permanent disbarment is unnecessary directing It is this court reinstatement. order of the cases which as to proceeding express any view this require an ex- power, might 'court, under its inherent seeking attorneys learning legal of disbarred amination as to 408-425 Stevens, 197 Cal. In re (See reinstatement. Edmonds, J., concurred. 16724. In Bаnk. Dec. F. No. 1943.]
[S. Commissioner, Ap etc., JR., A. as Insurance CAMINETTI, Corpora pellant, (a AND EDWARD BROWN SONS Respondents. tion) al., et *2 Appellant. W.
Hester Webb U. S. Webb B. Elden Friel Dunne, Arthur C. and Dunne & Dunne for *3 Respondents. A judgment
TRAYNOR, respondent J. in favor of 25, entered on January 29, 1940, November 1939. On conclusions, its amending entered order findings, denying and and appellant’s motion for a new February trial. 16, 1940, On appellant filed a ap notice of peal and a for request transcript personally arranged stenographic with the for compensation. On February 17, 1940, respondent also filed notice of request and a transcript. 11, for a On June appel lant filed a notice of intention to move respondent filed a notice of motion to proceedings terminate for preparation transcript. July 19, 1941, On denying appellant’s court entered its order motion for new trial granting respondent’s motion tо proceed terminate ings. present appeal is from that order. can There criticism of the order insofar it as
grants the motion to proceedings. terminate On appellant’s hearing own at motion, the reporter’s health to preclude was such as possibility of his com-
514 prepa- made the pleting transcript. His death thereafter (See v. Su- transcript impossible. Wynecoop ration of a perior 332].) 657 P.2d Court, 17 Cal.2d [111 pursuant motion
Appellant’s for new trial was made and was based to section 953e of Code Civil Procedure obtaining a impossibility transcript because reporter. disability It is settled passing on a motion for new court has a wide discretion must and that its action thereon under 953e the trial clearly not be disturbed unless shown Co., (Smith Orange Supply discretion. Belt abused this v. Oil 845]; Specialty 58 848 Moore Cal.App.2d P.2d v. [137 Coyne, 82]; Tool 128 662 P.2d v. Co., Cal.App. Conlin [18 Jack, 51 Cal.App.2d 1123]; 19 78 P.2d Kroeker v. Cal. [64 App.2d Comey, 272 8 Cal.2d 619]; Comey P.2d see v. [124 453 P.2d [66 sufficient, contends, file a
It appellant request arrange for com appeal, notice of It pensating reporter. duty is the steps necessary prompt filing take all to insure the tran diligent in reporter. sufficiently If is not script he may only regard deny the trial court motion trial under Procedure section 953e the Code of Civil Orange (Smith Supply supra; Specialty Belt Moore Co., v. v. Jack, supra; Coyne, Co., supra; Oil Tool Conlin v. Kroeker v. supra) supra; Comey Comey, may see v. terminate the (Wood v. preparation of the Co., 131 O’Ban Cal.App. 468]; Farms 312 Peterson P.2d [21 Growers, 328 Cal.App. ion P. 109 P. v. C. [292 California 1026]; Jaccard, 20 280 975]; Cal.App. P. Smith 467]; Alioto, Cal.App. Davis v. 122 740 P.2d Sheriffs ; 438 Scott, Cal.App. Clemmens Clem 1088] mens, 529]; Western Cal.App.2d P.2d Shutz v. p.2d 135]; Western Distributors, Cal.Ap P.2d etc. Grabovich, 118 Pipe Cal.App. Concrete Co. v. 367 [5 Bank, 71]; Security Cal.App. First Nat. *4 v. Taft Burt, P. 683]; Cal.App. Harris P.2d to ample ease 1058].) There is evidence the delay holding that there trial court’s was undue the appellant did transcript and that in the against diligence required guard to the con not the exercise complete to reporter be unable the tingency that the would transcript. disability that have would
There
evidence of
between
prevented
reporter’s preparing
transcript
the
the
February
appellant
the
filed notice
when
15, 1940,
when
request
transcript,
September
Appellant
jus
to
reporter
the
seeks
suffered a heart attack.
engaged
tify
delay
reporter
on
ground
the
the
the
that
& Loan
Savings
the
reporting
case of
States
Pacific
oppоrtunity
prepare
Assn.
to
v. Evans and
not have an
did
transcript
the
There is no
that
present ease.
evidence
the
reporter
the
the
between
prepared
could not have
the
request
the date
his
therefor
date
appellant
filed
reporter
which
the
States
reporting
the
commenced
Pacific
Furthermore,
compe
case.
appears
there were other
that
time,
reporters
tent court
at
but it
not shown
available
the
appellant
attorney requested
reporter
get
the
to
another reporter
place
to take his
in the Pacific States case.
Moreover, despite
engagement,
reporter
an op
had
portunity
prepare
transcript,
for there
recess
in the
11, 1940,
July
Pacific States case from April
until
16, 1940, and
why
there is no evidencе to show
he did not
prepare it during
period.
any
event it
a valid excuse that
reporter
time, owing
did
have
press
business,
other
prepare
transcript.
(O’Banion
Growers,
Cal.App. 328,
C. P.
California
975];
P.
Conner,
Laumann
12 Cal.App.2d
see
pointed
Burt,
As
out
Harris v.
learning from these tivity, expedite nothing preparation. its did given attorney
Appellant upon relies the advice extending the time by reporter’s that orders transcriber transcript necessary obtained and all prepare had been by time be obtained the re extending orders further would 7, March porter 1940, From when the transcriber. reporter’s tran transcript due, until June judges procured superior various scriber orders from reporter to file the extending prepare for the the time orders was obtained violation of Each of these Procedure, providing 953a the Code Civil filing postpone "The stenographic shall court, upon except upon order of affidavits stating and not by filed with facts the court any granted conclusions, before which affidavits continuance appearing said upon attorneys shall cause. be served served, filed, .” and no made, . . were or No affidavits ever respondents notice mailed to or their was ever served on or time, moreover, periods of attorneys. were, several There twenty- varying days to one hundred and three two protecting days, during seven was no order. which there Appellant orders obtained on notice that such were put attorney 953a, was told that violation of section any being obtained, orders were but never received affidavits a condition orders. these circum are to such Under rely court of appellant stances cannot on the derelictions of (See 1374.) ficers. 4 C.J.S. rely Appellant right contends that he had the time, extending reporter’s citing
void orders
California
Co., 200
Nat. Bank v. El Dorado Lime etc.
Rehmke,
687],
and Lewith v.
Appellant’s contention that the court in the basic action in construing applying erred and to the facts provisions case the of section 2344 of Civil the Code was not hearing made on the motion in the trial court. The affidavit in of the motion declared “The that legal questions on appeal depend wholly determined upon the facts established at and it the therefore is necessary that reporter’s the transcript of the trial be had.” There was no showing made as to the testimony, nature no and indication any that there was merit an appeal. In the absence of a record that section 2344 of the Civil Code was involved discussion of that inappropriate. (See Town St. Helena v. Mer riam, 135, 171 Cal. 299].) P. Appellant contends that respondents since a filed cross-appeal they responsible were as for the delays in transcript. Appellant, how ever, was moving party in the trial on the present appeal. His failure to proper take steps perfect appeal in the basic action way excused the fail ure respondents to take proper steрs protect their they when are not seeking relief. party Each must diligence act with to perfect his appeal. own (Dorcy v. Brodis, 153 673, appealed
The order from is affirmed. Gibson, J.,C. Curtis, J., Edmonds, and J., concurred. CARTER, J. I dissent. question,
The majority as the opinion states, is whether the trial court abused its discretion in refusing grant appel- Pro- section 953e of Code of Civil a new trial under
lant the reporter that death of made ground cedure concluding In impossible reporter’s it secure major- discretion, to show abuse of record fails procedure appli- ity have, opinion, countenanced a my meaningless and render of the statute which cation ineffective. liquidation Union 1936, in the January,
In course Indemnity corporation, Company, Louisiana insolvent of this Insurance was instituted Commissioner action agent, its cоmpany sums state to recover certain Sons, corporation, and Brown defendant Edward also firm. The members defendants answered alleging cross-complained, for amounts a number claims company. October, 1938, cause them from the due joined by pleadings, came to trial on issues amended 25, by stipulation sitting jury. On without November decreeing take plaintiff was entered $39,267.31 cross- nothing, but that defendants recover on their complaint. January 1940, a motion trial was On for new denied, provision disallow- order of denial contained ing $15,000 findings item to conclu- defendants. *7 accordingly, judgment were the favor sions modified $24,267.31. of defendants thus reduced to was February 1940, plaintiff appeal On filed notice of from judgment modified, request transcript. the for On and February following day, 17th, the defendants filed notice every deny- the part judgment adverse 'to them cross-complaint disallowing ing prayed by relief their for including claimed, $15,000 item items which was stricken judgment ruling from the at the time on motion for trial. 11, 1941, plaintiff gave On June notice of motion for an setting granting order aside a new ground, among others, owing on the to the illness reporter get impossible reporter’s it would be transcript. An filed in affidavit counsel following procure motion were avers that efforts made to filing transcript: request That at the time arranged transcript, personally with counsel the official court transcriber, reported who and with compensation. March, 1940, request their In at the city transcriber, hall and identified the counsel went to be included the clerk’s papers which were reporter re- by the transcriber that the She advised was was Savings Society & Loan porting the trial of States Paсific he transcript unable until prepare would be Evans and by the tran- She further advised work. was finished reporter for extending pre- time of the scriber orders transcript obtained, had all neces- paring the and that sary by reporter orders would be taken care of or his assistants.
Counsel further avers: “Each month thereafter and until October, 1940,1 with was communicated [the transcriber] engaged by reporter] her that still told was the Pacific [the case extending States and that orders his time file the transcript had been obtained and filed.” October, by affiant was advised the transcriber that reporter had suffered a heart September severe attack on 14th hospital and was confined to the and that she pro- tecting the time filing orders court.
From time to time thereafter affiant was advised that still in the hospital carry аnd was unable any work or even In February, read his mail. 1941, she was advised the transcriber that the still ill very might and that some be time before he work; could return to required also being that the court orders were obtained. In April, 1941, telephoned the transcriber advising affiant her that the reporter’s because of ill health un- he would be complete able to relayed transcript. Affiant this infor- to opposing mation by telephone counsel and asked them to arrange with pursue. her as to the Thereafter, they course to did not her, May communicate with telephoned so she transcriber. She was the reporter advised that would never complete able to the transcript and she later learned that passed he away. had again
Meanwhile, and on June 5th, she telephoned opposing counsel and them for a stipulation asked for a They new trial. promised let However, her know. judge she learned that who tried the *8 coming town, so, case was on to June 11th gave she notice of judgment motion to vacate a and for pursuant to of section 953e of the Civil Pro- Code cedure. support
Her affidavit in showed, motion addition mentioned, already that there had the averments to through reporter than fifteen procured of the more the office time, pur- extending which different court orders two of retroactive, period delay ported to be so that the sub- stantially by protective However, orders. the orders covered were or filed conform- defective. No affidavits served were ity requirement with the of section 953a of the Code Civil reporter post- stenographic Procedure “The shаll not that transcript pone filing except upon order of the of the court, upon reporter, affidavits filed with conclusions, stating which affidavits before facts and granted attorneys be continuance is shall served appearing in said . . . the court shall otherwise cause unless order, prior making to the of said order of continuance.” gave 11, 1941,
On of motion to ter- June defendants notice minate for the of a on ground delay plaintiff appeal on the of unreasonable diligence, a procuring transcript, lack of failure of the reporter to serve file affidavits to the orders ex- tending supported by time. This notice was affidavit pointing expense defendants’ counsel and inconven- retrial, prejudicial delay, ience of effect and the of the personal witnesses likelihood recollections of would passing distinct be less with time.
Upon hearing plaintiff’s a full motion to vacate trial, and for motion to a new and defendants’ proceedings, plaintiff’s terminate mo- the trial court denied granted defendants, giving tion and that of reason as his although is no limit time there on the within which may prepare transcript, delay may nevertheless undue grounds grant plain- for refusal and that here diligence steps tiff showed a lack proper and failed take guard against contingency in- happened, which ability complete Plaintiff appealed ruling. from this jurisdiction grant state of the court a new strictly statutory is grounds, limited as prior dealing
to 1931 there was no statute the effect with of death incapacity reporter, a new trial could not be had on ground. contrary jurisdic- This many rule where, granted tions deаth new trial course, right. (Diamond a matter of Superior
521
36],
189
732
(1922),
Cal.
and authorities there
[210
Court
114;
16
603;
107 A.L.R.
A.L.R.
reviewed; 25 Cal.L.Rev.
People Keefe,
App.Div.
102;
v.
254
1158; 13
683
A.L.R.
[3
State,
v.
In the first cаse its provisions and phrase particularly the “shall have power,” were declared to mandatory merely to repose be not in the trial court a discretion” the matter granting'or “wide of denying new ground (Moore trials on the stated Specialty v. Co., Oil Tool Cal.App. 662, 128 664-5 82]). P.2d See to [18 the same effect Conlin, Coyne, App. 19 v. 2d 78 1123]; P.2d Comey [64 8 Comey, Cal.2d 453 148]; v. P.2d Kroeker Jack, 51 Cal.App.2d 619]; P.2d Orange Smith v. Belt Supply Co., Cal.App.2d 845].
This construction of statutory language is obviously one, for put a sound compulsion absolute upon the trial grant a new trial on a showing mere that death or disability of the has made the of the impossible, gross be to injustice would work a many Every presumption cases. is in favor of the fairness, impartiality, regularity in the trial leading judgment. A verdict or judgment pre- sumptively right until it is wrong. shown be Thus de- prive party of and the intendments in its supрort, and to force him every to re-establish his claim showing case where there is a mere of incapacity or death without consideration of facts, diligence diligence lack of shown aiding timely procurement transcript, of a possibility exceptions bill
agreeing facts, or statement of of merit or lack of merit in the appeal, indications would deny automatically every trial to just as as to a new unfair deprived has because of appellant who securing (Diamond Superior record. impossibility Alley McCabe, 615]; Ill. 410 Court, supra; N.E. Cases, A. A Stenographer Me. exceptional material witnesses or other circum the death impossible prevailing making party prove for the stances *10 might by judge, a re-trial be a considered his ease on discretion, hardship sound to overbalancе the the exercise of a by deprivation appeal on a appellant of his on worked by way of In denial relief a new record. cases of full some grounded a upon showing appel been properly trial has tran preparation of the timely obstructed the lant himself on the roll a bill appeal or script. In others an been relief. has found to afford sufficient exceptions of found exceptional these cases there will be But aside ordinary deprivation run of in the where number vast part of without fault on on a full appeal an by incapacity or of reason of death appellant, but by way trial, of a will work a relief of the denial and injustice countenanced; great to be eases too hardship and wholly depends appeal failure the success where at the complete presentation of established the facts upon a may be had without material where the re-trial trial; eases rights cases delay respondent; and damage by of the motion made where the may be meritor- appeal to indicate that is sufficient by presented appeal are points least that the ious, ator hearing on the merits. appellant to a entitle the as to such favor, always possible, is wherever of the law policy (California Nat. Bank merits hearing appeal on the anof Wayb 704]; 452 Co., 200 P. Cal. Lime El Dorado etc. [253 v. Manning ; 374 Anderson, 200 Cal. v. v. right [253 148] 795]; Peterson Farms 44 Wood v. P.2d 14 Cal.2d Gavin, Siller, 121 Cal. 922]; Banta v. P.2d Co., McRae, Cal.App.2d ; Labarthe P. 935] protected be just It essential is as as that a the merits on his heard right to have his in presumptions and given the benefit respondent gives еver, a retrial judgment. Mor supporting tendments absolutely parties chance, another a denial it both whereas appellant. forecloses question 953e
There can therefore be
has
properly
repose
been
construed
in the trial court wide
passing upon
on the
motions
new trial made
discretion
ground.
although
one,
discretion,
stated
a “wide”
is
But
arbitrary,
unrestricted;
unlimited,
it must be exercised
according
commenting
danger
In
settled rules.
on the
investing judges
discretion,
Camden,
with
unlimited
Lord
greatest
one of
purest
English jurists,
and
said:
judge
“The
tyrants;
always
discretion
is
law
it is
unknown;
it
men;
casual,
is different in
is
different
it
depends
constitution, temper,
passion.
the best it
caprice;
is often
every
in the
vice, folly,
passion
is
worst
to which human
(State Cummings,
nature can be
liable.”
263,
36 Mo.
Phrases,
588.)
p.
Words and
granting
Discretion in
a new
has
defined
“an
attempt,
duty
honest
judge
the exercise
power
legal
justice
done,
see that
to establish
right”
(Johnson
Grayson,
In this Sharon 345], “The discretion P. Sharon, 1, 75 Cal. discretion, legal reasonably exer- is to be the court below a necessarily imply . . does not of discretion’ . cised. ‘Abuse legal sense, wrong. In dis- abuse, or intentional a wilful exercise, a whenever, in its court exceeds cretion is abused being reason,—all circumstances before the the bounds considered.” сircum- peculiar facts and apparent
It thus carefully must considered case stances of individual each properly exer- determining has been whether discretion reviewing the case, trial court’s cised. In after light and of all ruling applicable rules record, conclude by I cannot but shown circumstances motion for new trial was un- appellant's the denial of abuse discretion. reasonable constituted things required initiating all appeal, appellant In did 953b). Proc., 953a, Coun- by (Code him statute Civ. sees. requested of a (1) appeal; (2) sel filed notice of arranged reporter; transcript; (3) compensate (4) City Hall and accompanied the transcriber w¡hich papers be included in clerk’s identified were to prog- inquiries as to the periodic She then made circumstances, gain ress of she stood the work. Under making harassing formal nothing by unduly him, trying demand him to transcribe upon to force securing of mandate. No time limit a court order writ (Hohnemann filing prescribed Co., Cal.App.2d 692, 748]), & G. E. Pacific steps required by and after had taken the initial statute, duty reporter, who acts as an rested performance officer of in the his ministerial sec. (sec. 269, Proc.; functions Code Civ. Cal.Jur. 653; Browne, 1082]), p. Pratt proceed secure, necessary, if pro- with the work and to time, extending supported tective orders affidavits 953a). (see. properly filed served and dealings reporter, appellant her followed the with custom, charged prevailing cannot be with lack dili- *12 gence upon reporter’s in the from the relying assurances being office extensions of were secured. tran- that time work had been in that since scriber testified she that obtained had been way all extensions “that this was the knowledge experi- in her her during time, and to that Another tran- an affidavit.” presented ence had never she counsel appellant’s reporter’s in officeasked scriber the attempt to com- matter” or the “press time to time not to as such reporter personally, “he was with the municate might Up him.” to anything upset mental condition that of the seri- information April, 1941, had no definite counsel Certainly appellant’s illness. after reporter’s of the ousness by statute on her things required all having done counsel for the done, penalized not be part appellant should to be dereliction of the court officer. by respondent that request suggestion was made
No or appellant against reporter. the It is doubtful take action successfully taken in view that such action could have been which being reporter work done the on another case the duty delayed starting transcription. There the obligation party procure or to or- part the of either the duty re- extending solely upon ders time. This rested knowledge porter. in smaller It is a matter common that having only preparation of tran- counties one delayed scripts reporter is often for months where the is engaged in or he tran- reporting other cases where has other scripts prepare previously ap- cases have been which pealed, always is the liti- practice such eases gants cooperate reporter upon and not insist with the attempting impossible requiring more or him to do circumstances, than permit. his endurance will Under such reporter disabled, if should die or become and the negligent apply- should hold ing taking for a other coercive writ mandate some transcript, steps preparation the action force clearly arbitrary the court would be unwarranted and would constitute an abuse of discretion. case, here, stated, present already
Such expressly trial court his denial of a new trial based ground “Diligence required stages pro- at all party. ceeding opposite waived In the unless diligent case it said cannot be that the transcript, plaintiff took the proper guard against contingency steps hap- which has pened, inability wit, complete
526
transcript. appear It that a does sufficient has here been made aside the setting to warrant the of granting (C. 31.) trial. This p. the of a new ...” T. clearly erroneously charged ap- trial court shows the pellant duty, with the court officer’s dereliction of and based ruling ground. question soundly of discretion has exer
The whether already depends, stated, in par cised as each case majority All ticular circumstances. of the cases cited clearly distinguishable opinion present are case because of differences the factual situation. ¡that statement, “In it is not a event valid excuse owing press reporter time, did not have majority business, prepare transcript,” opin other (O’Banion Growers, ion P. cites three cases C. California 109 329 Cal.App. 328, 975]; Conner, P. Laumann v. [292 Burt, 12 Cal.App.2d 1255]; 631 P.2d Harris v. 47 Cal. 1058]). 482 App. an appeal case involved from an order ter-
The O’Banion
minating proceedings.
press
Due
the re-
business
porter forgot
prepare
transcript.
The court said this
say
get
that an
excuse,
impossibility
no
but did
reporting
another case would not
the work out due
appellant’s
in-
present
frequent
In the
case
valid excuse.
forgetting
reporter
left
chance for
matter.
quiries
reporter’s
involved the effect of the
The Laumann case
jurisdiction
The trial court was without
of his notes.
loss
*14
due to the
delay was
complied
requirements and the
with
See, also,
court.
Conti
derelictions of officers
the lower
Assn,
44
136
N.W.
Bldg.
Mills,
Neb.
& Loan
v.
nental
[62
N.W.
Nightengale,
Smith v. partial available, might ‘‘It well where testimony had 66 folios of which been transcribed be that the support judgment, evidence sufficient to contained only testimony could raise a the untranscribed Which event concerning affidavit nature Nothing is said conflict. transcribed, is no testimony which and there had fact the evidence was in insufficient attempt show alleges that the affidavit judgment. While suрport any assis- ‘is not available’ counsel former showing that no such record the of in the tance is not too by timely effort been had could have assistance strong.” presented to this court Comey, supra, was
Lastly, Comey v. affirm” “motion to dismiss or procedure known as under a clearly appeals which employed dispose of were formerly than that more opinion states no The brief non-meritorious. of discretion. there abuse en- facts and circumstances discloses present The record cases. Here trial of the above tirely from those different pressure appel- of days. The under nine consumed He cylinders. did inquiries, several frequent dictated lant’s Francisco, another customary in while, as is San he was re- relieving during from the case his off-shift transcript, appel- clerk’s all, in addition tо the porting. only get pages transcriber about was able lant days reporter’s transcript, or about two and one-half of permit of day sufficient to com- the nine trial. This was not involving as it pletion type, in a case of this does a record separate accounting, a number items in the nature separate trying so that it is “like half dozen eases.” affidavit of counsel of the motion The alleges legal questions trial that “The to be determined on appeal depend Wholly upon the facts established at the necessary reporter’s transcript it therefore that the legal questions had.” referred the trial be One appellant’s opening brief to be stated whether the erroneously applied Code, section 2344 of the Civil dealing obligation agent to property, with the of an surrender Naturаlly case. on a roll appeal, the facts of the facts, appellate presentation court would be without properly applied. whether the statute was unable to determine majority opinion “In states that the absence of a rec- showing section 2344 Civil Code was involved ord that section is inappropriate. discussion of Merriam, (See Town St. Helena ” helpful, is not But the cited case is difficult appellant, lacking reporter’s transcript, see how could any stronger that section 2344 is involved presentation point has been done than *16 opening the submission of a full tran- brief and clerk’s involved, script. All of indications are the statute is contrary. rather than majority also opinion
The states “There show- testimony, nature ing made as to the and no indication any appeal.” contrary merit This is that there to pleadings record. The show the nature the case and joined transcript for trial. the issues The clerk’s also shows stated, gave court, already trial as first defendants that the $39,267.31, judgment cross-complaint their for but on de- plaintiff’s original trial, motion for nial of disallowed judge changed $15,000 very item. The fact that the trial once item, comprising more than his mind as to substantial one- judgment, may indicates case third that the have been points appeal, a close one that the raised if not substantiality of sufficient meritorious, are at least to merit consideration. original upon denial of the motion for
In a memorandum judge considering the trial the trial stated that he was primary question” presented on the “same as was ruling, change as to as to that would but that damage “in nature of $15,000, appeаred item to be The a breach and should not be allowted.” contract findings, conclusions, and were modified accord- ingly. ruling in a This left the case state which was not satis- plaintiff to that both factory party, either so and defendant separate appeals. plainly This shows took adjudication conclusively court’s no means so correct the conditions that the denial of new trial under mentioned as a or reasonable exercise dis- could classed sound cretion. upheld upon claim
The denial of relief cannot be appealed injury respondents. Respondents also from the judgment. duty upon them procure rested just upon appellant, as much it did same avenues might They them. have open open relief were act, they or if steps found compel taken sought ter- delay they order unreasonable, could have They minating proceedings nothing, however, appellant moved a new until did They noticed their own'motion under section 953e. then motion on the opposed appellant’s terminate *17 expense involved inconvenience, and extra ground delay, personal that recollections retrial, the hazard on might distinct. witnesses be less for a new can appellant, arguing
They urge that compel advantage their take failure oppose they any position But neither are act. is so. This by ground damaged they on the have been the new trial delay. delay, they acquiesced for The law favors Clemmens, 13 early disposition appeals (Clemmens 529]), parties appeal, where both Cal.2d but duty procure transcript, both to and the prosecution will be want of where dismissed laches or guilty. advantage both One cannot are take the other to hearing (Tripp Duane, cut off a on the merits. 2; Trial, 272.) Hayne p. 1512, on sec. New 867]
Therefore, inasmuch as record here establishes that the incapacity impossible .the made it adequate transcript, secure an that there was no lack of dili- gence part, appeal presents that his points substantial meriting consideration, respondents and that are not entitled they to claim that injured by delay, ap- have been it is parent that the denial of a trial under section 953e con- holding conformity stituted an abuse of discretion. This is in with the in upholding trend of law to be more liberal (39 of a new trial than granting the denial of one Am.Jur. 202, supra), and also with legislative sec. intent to liberal- obtaining ize former limitations in this state, as evidenced by 953e, enlarging its amendment of em- statute to only disability” brace not situations created “death destruction, those created “the loss or ’’ part, whole or substantial of his notes. denying terminating order new trial and be should reversed and the cause should remanded trial. Schauer, J., Shenk, J., and concurred. rehearing petition January for a
Appellant’s denied J., Shenk, J., Carter, J., Schauer, 1944. voted for a rehearing. at that time loss notes grant a trial because trial. statutory ground of new This omission anot enlarging its remedied amendment 953e has been 1.) (Stats. 1943, 1017, sec. eh. scope. appeal. dismissal of The Harris case involved the The naming the amount of his appellant fee wrote go work, upon ahead with the you me to stating, “If wish promptly.” Appellant I do so my will prepayment fees nothing heard until he was reply did not appeal motion to dismiss the making informed of securing laches appellant’s because diligence properly sup- held to appellant’s lack of of dismissal. port the order case is the situation Cali- in line with More appel- Co., supra, where Bank Lime etc. Nat. fornia remedial provi- under the from default relieved lants were Procedure, even Civil the Code sions of section orders extend upon void mistakenly relied though they had See, exceptions. of a bill ing time for their At an P.2d Rehmke, 217 Cal. also, 687]. Lewith state, juris in other in this early recognized date it was of his deprived not be appellant should dictions, that of officers through fault right appeal constitutional 162; Lovell v. (1852), 2 (Stark v. Barnes of the court Griffin, 51 385]; Lovell v. P.2d Deyoe, Cal.2d Deyoe, dis In Lovell v. 615]). Cal.App.2d timely file a for failure missal of an substantially had ground was denied on the