110 P. 109 | Cal. | 1910
The respondents move the court to dismiss the appeal upon the ground that no transcript of the record on appeal has been filed, and that the time allowed therefor has expired.
On January 28, 1910, the superior court made an order refusing to confirm the sale of the real property of the estate, theretofore made and reported to the court for confirmation by certain persons claiming to act as trustees. The order was entered by the clerk on the day on which it was made. On February 5, 1910, Hamaker, the purchaser at said sale, filed a notice of appeal from said order. The notice of motion to dismiss the said appeal was served and filed on April 1, 1910. No transcript of the record on appeal has been filed. The time elapsing between the perfecting of the appeal and the filing of the notice of motion to dismiss the same was fifty-five days. Rule II, [144 Cal. xl, 78 Pac. vii], of this court requires the printed transcript of the record to be filed within forty days after the appeal is perfected. Rule V, [144 Cal. xliii, 78 Pac. viii], provides that the appeal may be dismissed if the transcript of the record is not filed within the time prescribed, or before a notice is given of a motion to dismiss the same.
These rules were made prior to the enactment of sections 953a, 953b, and 953c of the Code of Civil Procedure, providing that the transcript required on appeal need not be printed when it is prepared in the method therein prescribed. At the time this motion to dismiss was instituted no rule had been made by this court fixing any limit of time within which, after taking an appeal, the appellant shall file the transcript of the record, in case he proposes to prepare it in the new method and not have it printed. The appellant now declares that he intends to follow this new method and he claims that rule II does not apply and that he is not in default for not filing the transcript within the time mentioned.
The motion is not based on the ground that the appeal has not been prosecuted with reasonable diligence, but solely upon the claim that there has been a failure to file the transcript within the forty days prescribed by said rule. It is obvious *112 that the rule has no application to the filing of a transcript which need not be printed. This answer to the motion would be sufficient if it appeared that there yet remained an opportunity to the appellant to take advantage of sections 953a, 953b, and 953c by filing a typewritten transcript of the record prepared in the manner therein provided. But an examination of the facts disclosed upon the hearing satisfies us that the appellant has lost the right to follow this proceeding.
Section 953a provides that when the appellant desires to have the record presented in the new method he may file with the clerk of the court below "a notice stating that he desires and intends to appeal, or has appealed therefrom, and requesting that a transcript of the testimony offered or received, and all rulings, instructions, acts or statements of the court, also all objections or exceptions of counsel, and all matters to which the same relate, be made up and prepared. Said notice must be filed within ten days after notice of the entry of the judgment, order or decree. . . . The stenographic reporter shall, within twenty days after said notice has been filed with the clerk, prepare a transcript of the phonographic report of the trial including therein copies of all writings offered or received in evidence and all other matters required by the notice above referred to to be therein contained, and shall file the same with the clerk. . . . If the judgment, order or decree appealed from be not included in a judgment-roll, the party desiring to appeal shall on the filing of said notice specify therein such of the pleadings, papers, records and files in said cause as he desires to have incorporated in said transcript, in addition to the matters hereinbefore required and the same shall be included."
Section 953b requires the appellant who thus proceeds under section 953a, to file with the notice to the clerk an undertaking, with sureties, to pay to the clerk the costs of preparing such transcript.
Section 953c provides that after the transcript is prepared in the manner specified in section 953a, "it shall be the duty of the clerk of the court from which the appeal is taken, within ten days after the preparation of the record, to transmit to the clerk of the court to which the appeal is taken, the record prepared."
In the present case the order appealed from was not one *113 which required a judgment-roll to be made up, and hence a notice to the clerk to have the transcript prepared would be necessary in order to enable him to know what papers were to be included therein. It is admitted that no notice was ever given or filed with the clerk as required by section 953a Under said section the notice to the clerk must be filed within ten days "after notice of the entry of the judgment, order or decree." It appears by the affidavits filed upon the hearing that the appellant was present at the time the order was made and announced in open court, and that a few days thereafter he was in the clerk's office and read the order and stated that he was satisfied with its form. The filing of a notice of appeal therefrom on the fifth day of February, 1910, is, of course, conclusive evidence that he knew of said order and of its contents at that time. It is therefore proven by incontrovertible evidence that he had full knowledge of the order at least as early as February 5, 1910. If this fixed the beginning of his time to give the notice to the clerk, then that time had elapsed long before the proceeding to dismiss the appeal was initiated. We think it does fix at least the latest point of time for the beginning of that period and that by failing to give that notice he has lost his right to proceed with the preparation of the transcript on appeal in that manner. The only course then remaining to him was to have the transcript of the record on appeal printed and filed in the ordinary manner and within the time prescribed by rule II, aforesaid. No proceeding to obtain a bill of exceptions has been begun. Hence, the time for filing the transcript has not been extended thereby, as provided by the exception stated in that rule. Relief from the failure to give notice to the clerk, under section 953a, if it can be given at all, must be sought in the lower court. No application for such relief has been made to that court. The failure to file the printed transcript might be excused by this court if good cause was shown therefor. No sufficient excuse appears. The motion to dismiss the appeal must therefore be granted.
It is suggested by the appellant that the ten days within which he should file with the clerk a notice to prepare the transcript does not begin to run until the service upon him of a written notice of the entry of the order, that a conclusive admission of notice appearing of record, is not sufficient, and *114
that, there having been no service of formal written notice, his time to proceed under section 953a has not expired and hence that he is not in default for not filing the transcript. The proposition that a written notice of the entry of the order is necessary to start running the time for filing the notice to the clerk by the appellant is not sustained, as we understand the authorities. This statute has not been construed, but other decisions upon similar statutes establish the rule to be applied. Section 476 of the Code of Civil Procedure provides that the time to amend or answer a pleading after a demurrer has been sustained thereto runs from the time of service of notice of the decision or order. In Barron v. Deleval,
The principal point urged by the appellant in opposition to the motion to dismiss is that his failure to file the transcript within the prescribed period was due to the inadvertence and excusable neglect of his attorney. There can be no doubt that where such default is made under circumstances which would show good cause for relief under the decisions on that subject in applications under section
The appeal is dismissed.
Sloss, J., Lorigan, J., and Angellotti, J., concurred. *117