116 P. 331 | Cal. Ct. App. | 1911
Respondent has moved to dismiss the appeal on the ground that "the appellant, Napa Valley Brewing *42 Company, a corporation, has failed to serve and file the printed transcript of the record within the time prescribed by Rule II [144 Cal. xl, 78 Pac. vii] of the supreme court." The motion is supported by the certified statement of the county clerk setting forth the facts required by Rule VI [144 Cal. xliii, 78 Pac. ix] of said supreme court. By said certificate it appears that the notice of appeal was filed on January 11, 1911; "that no bill of exceptions or statement on appeal has been made or filed; that appellant has not requested the clerk to certify to a correct, or to any, transcript of the record; and no motion or notice of intention to move for a new trial in said action is pending or has been filed in said cause." Notice of the motion to dismiss the appeal was served on March 13th and filed herein on March 15th.
The matter has been submitted without argument, and the only showing made by appellant in opposition to the motion is contained in an affidavit of Hon. Frank L. Coombs, who declares therein that "he acted for the attorney of appellant in filing the notice of appeal in the said cause; that affiant had previously taken an appeal under section 941b of the Code of Civil Procedure, and in this appeal he followed the same course adopted by the clerk of the superior court of the county of Napa in the said previous case; that upon the filing of the notice of appeal in the above-entitled case he requested the clerk to prepare a transcript of the judgment-roll and papers necessary upon said appeal, and to transmit the same to the clerk of the said court of appeal with the necessary certificate, agreeing to pay the said clerk the expenses therefor. That the said clerk consented to do the same; that thereafter and upon several occasions affiant called the attention of the said clerk to said matter of preparing and transmitting said transcript, and understood and supposed the same would be done within the time required by law." It is thus not disputed that under the rule it was the duty of appellant to file the printed transcript within the forty days, but it is sought to excuse the default on the ground that the attorney depended upon the clerk of the court to perform that duty. It was supposed that he would pursue the same course that he did under another appeal taken under a different section of the Code of Civil Procedure. *43
To accept this as a legal justification for the failure to comply with a rule of court designed to expedite and facilitate the disposition of causes upon their merits would be to discourage diligence in the prosecution of appeals and establish a precedent that might lead to vexatious delays in the future.
The following cases, though different in their facts, serve to illustrate the view of this same question taken by the appellate courts of the state:
In Union Lumber Co. v. Metropolis Construction Co.,
In Gervais v. Joyce,
In Hamaker v. Keating,
But, for another reason set out in the Keating case,supra, the default should not be set aside. Therein the supreme court *44
declares: "Lastly, if rules similar to those governing applications for relief under section
The appeal is therefore dismissed.
Hart, J., and Chipman, P. J., concurred.