203 P. 428 | Cal. Ct. App. | 1921
This is an appeal from a judgment entered in favor of plaintiff, and from orders denying defendant's motions for relief from default in preparing her record for use on appeal.
It appears that this action in claim and delivery was originally brought against Mobley Meadows as sheriff of Imperial County. An answer was filed, and upon the issues so joined a trial was had, which resulted in a judgment for defendant, from which plaintiff appealed, as a result of which the judgment was reversed. Meanwhile Meadows had died and Rebecca J. Meadows was appointed administratrix of his estate. Thereupon in due time plaintiff, in accordance with the statute, duly presented to her as such administratrix a demand for the delivery to him of an automobile made the subject of the claim and action then pending. Thereupon she, as such administratrix, was substituted as defendant, and a supplemental complaint was filed, setting forth the facts upon which plaintiff based his claim to the property, together with other matters which, under the circumstances, were proper in a supplemental complaint. To this complaint defendant filed a general demurrer, which was overruled. Thereupon defendant answered the same, wherein, in addition to denials, she alleged a number of separate defenses to plaintiff's cause of action. The case was tried by a jury, which rendered a verdict in favor of the plaintiff, fixing the value of the automobile constituting the subject of the action at the sum of two thousand two hundred dollars, together with interest thereon from February 5, 1915, the date of the taking. Following this verdict, judgment was entered by the clerk on May 13, 1920. A motion for a new trial, made by defendant, was denied by operation of law on August 13, 1920. *6
On September 10th following, defendant filed a notice of appeal from the judgment and order denying her motion for new trial, followed on November 10, 1920, by the filing of a transcript of the record in support of the appeal, after which, to wit, on February 7, 1921, the supreme court, in which court the appeal was pending, made an order dismissing the same.
In entering the original judgment on May 13, 1920, the clerk failed to comply with the directions contained in section
Thereafter, to wit, on November 12, 1920, upon motion of plaintiff, the court made an order pursuant to which the judgment was amended nunc pro tunc as of date May 13, 1920, when originally entered. The amendments consisted of a compliance with the provisions of the statute requiring the judgment in such cases to be in the alternative form, so that as amended it provided for the recovery by plaintiff of the automobile and damages, and in case a delivery could not be had of the property that plaintiff should recover the value thereof, with interest, payment of which should be made by said administratrix out of the estate of Mobley Meadows, deceased, in due course of administration.
Thereafter, to wit, on November 23, 1920, the defendant filed with the clerk of said court a notice that she intended to appeal from the judgment as amended, and requested that a transcript of the proceedings be prepared in accordance with the provisions of section 953a of the Code of Civil Procedure. Whether or not such transcript was ever prepared and presented for authentication is not disclosed by the record. It does appear, however, that on December 17, 1920, defendant, correctly or erroneously assuming that her time for so doing had expired, and upon notice supported by the affidavit of her counsel, moved the court for an order relieving her from default in filing with the clerk notice of defendant's intention to appeal from the judgment entered against defendant on May 13, 1920, and requesting *7 the reporter's transcript to be prepared in accordance with section 953a of the Code of Civil Procedure, and that the court reporter be ordered and directed to transcribe the phonographic notes of the report of the trial, and also made a motion that she be relieved from default in failing to prepare and present to the judge of said court a bill of exceptions of the proceedings had at the trial of the cause within ten days after the defendant's motion for a new trial had been denied, which motions were made upon the ground of the alleged mistake, inadvertence, and excusable neglect of defendant's counsel, both of which motions, upon consideration of appellant's affidavit in support thereof and the counter-affidavit filed by plaintiff, were, on December 17, 1920, denied by the court, which proceedings in regard to the making and denial of said motions are embodied in a bill of exceptions presented by the record.
Thereafter, on December 31, 1920, defendant filed two notices of appeal, one of which was directed "to the plaintiff and to the clerk of said court," and the other "to the plaintiff and to his attorneys," in both of which she gave notice of an appeal to the supreme court from the judgment as amended by order of court on November 12, 1920, and also from the orders of the court denying her motions for relief from default made on December 17, 1920.
There was no abuse of discretion on the part of the court in denying the motions that defendant be relieved from her default due to her failure within the time allowed by law therefor to prepare and present for authentication a record to be used on appeal, without which the orders should not be disturbed by this court. The affidavit, dated December 6, 1920, of defendant's attorney in support of the motions is barren of any facts which even tend to show excusable neglect or mistake on the part of defendant. Other than the statement that on November 23, 1920, her counsel filed with the clerk of the court a notice that defendant intended to appeal, and requesting the preparation of a transcript of the proceedings at the trial, as provided in section 953a of the Code of Civil Procedure, all of the statements therein relate to the motion theretofore made for a new trial and to matters occurring prior to the entry of the amended judgment made on November 12, 1920, and from which this appeal is prosecuted. While it appears *8 that within ten days from the entry of the amended judgment he filed with the clerk notice and request for a transcript of the record, including the reporter's notes, to be used on the appeal, it does not appear that the transcript was ever prepared. On the contrary, affiant states that "he has not been able to obtain the transcript from the said court reporter and has not received it at this time [December 6, 1920], and is unable to assign any reason for the failure of the said court reporter to furnish it." Upon the showing so made by affidavit, we cannot say there was any abuse of discretion on the part of the court in denying the motions; indeed, it is difficult to see how it could properly have done otherwise. Moreover, while not necessary to a decision of the case, we are unable to perceive how a reversal of the orders could in anywise avail appellant on this appeal. She has appealed from the judgment on the judgment-roll, and that appeal must be determined on its merits, regardless of the fact that the trial court may have wrongfully refused to settle a bill of exceptions or have a proper record authenticated. [1] The proper remedy in such case is to apply to this court for a writ of mandate to compel the trial court, or officers charged therewith, to authenticate a proper record which can be brought up with the record on appeal from the judgment.
We are thus brought to the appeal from the judgment, which in the absence of instructions given by the court to the jury and the evidence adduced at the trial must be considered on the judgment-roll alone. Contrary to respondent's contention, we shall, without so deciding, assume the time for taking the appeal commenced from the entry of the judgment as amended on November 12, 1920, rather than, as he claims, from the time of the entry of the original judgment on May 13, 1920, from which last judgment it appears that an appeal was taken and thereafter dismissed by the supreme court.
Appellant suggests, without making any argument thereon, that the court erred in overruling her general demurrer to the supplemental complaint. There was no error in so doing. While in form the complaint may have been objectionable, it is sufficient in substance, and defects, if any, therein could not be reached by a general demurrer. Neither was it objectionable in that, as claimed, it added *9
a cause of action against defendant individually and not in her representative capacity. The cause of action as stated was against her solely and alone in her capacity as administratrix of the estate of Mobley Meadows, deceased, out of whose estate it was ordered the judgment be paid in course of administration. Neither was there any error on the part of the court in permitting the supplemental complaint substituting the administratrix of deceased, to be filed, and alleging therein, as provided by section
[2] The verdict of the jury was: "We the jury in the above entitled action find for the plaintiff and find he is entitled to the return of the automobile described in the complaint, and find the value thereof to be the sum of $2200.00, together with interest thereon from Feb. 5, 1915, at 7% per annum." Appellant insists that such verdict is not in accordance with section
A number of separate defenses were set up in the answer of defendant, which the jury by its implied finding decided adversely to her. In the absence of instructions given or any evidence offered, we must assume there was no error in the trial which affected the verdict.
The judgment and orders appealed from are affirmed.
Conrey, P. J., and James, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 30, 1921, and the following opinion then rendered thereon:
THE COURT. — The petition for a rehearing of this cause in the supreme court after decision by the district court of appeal of the second appellate district, division one, is denied.
The defendant insists that the district court failed to consider at all her objection that the court had no power or jurisdiction to make an order amending the judgment asentered on May 13, 1920, nunc pro tunc, while the appeal therefrom was pending, so as to make it conform to the *11 judgment as rendered on that day, and that the corrected judgment so entered is void for that reason.
[3] In support of this point she cites Kinard v. Jordan,
[4] The action in this case was in claim and delivery under the code. The verdict of the jury was that the plaintiff was entitled to the return of the property and that its value was two thousand two hundred dollars, with interest, as damages, in accordance with section
Shaw, C. J., Lennon, J., Wilbur, J., Shurtleff, J., Sloane, J., Waste, J., and Richards, J., pro tem., concurred.