298 P. 528 | Cal. Ct. App. | 1931
The respondents have made a motion in this case to strike the reporter's transcript from the files and affirm the judgment on the ground of unreasonable delay in the preparation of the transcript and on the further ground that the trial court abused its discretion in failing to terminate the proceedings for its settlement after a delay of more than six months, and for the reason that the appeal is frivolous. The facts are as follows: Judgment was rendered for plaintiffs on March 24, 1930. Notice of entry of judgment was served March 31, 1930. Notice of order denying defendant's motion for a new trial was served and filed April 21, 1930. On April 26th the defendant filed his notice of appeal and a notice to the clerk requiring the reporter to make up the transcript of all the testimony offered or received, advising the clerk therein that the defendant would arrange personally with the reporter for his compensation. The trial of the cause consumed only a couple of hours, but most of the testimony was documentary and appellant's counsel endeavored to have the reporter certify the testimony without the documentary evidence, which the reporter refused to do. He also asked the respondents to stipulate that the documents might be excluded, which they refused to do. Time went on and no arrangements were made with the reporter for his compensation and no transcript was prepared. Finally on November 17, 1930, the plaintiffs gave notice that on November 24th they would move the court below for an order dismissing and terminating the proceedings for the preparation of a transcript for the reason that the defendant had not arranged for the compensation of the reporter, and further because he had failed for an unreasonable length of time to require the preparation of or to prepare the transcript. The motion was supported by an affidavit of counsel setting forth the facts we have already narrated and was opposed by one from defendant's counsel in which he asked to be relieved of his default and set up that prior *541 to filing his request for the transcript he had received and paid for a "complete reporter's transcript of the trial", exclusive, however, of the documentary evidence; that it was the opinion of affiant that to include such evidence would entail useless expense; that an effort was made to secure a stipulation that it might be eliminated; that upon being advised that plaintiffs would not so stipulate he instructed two of his associates to inquire of the court if it was necessary to include the documents and believed after such conference with his associates that all the necessary steps had been taken; that his business has been such that for several years it has been essential to have the assistance of five other attorneys in his office; that within one year prior to the date of the affidavit he had lost the service of three of them, one by death, one by the severe illness of his wife and one by appointment to public office; that the loss of his assistants and the employment of new ones threw upon his own shoulders such heavy burdens that he was obliged to work from early morning until late at night every day; that by reason of the pressure of his professional duties he was unaware of his default in the diligent preparation of the transcript until the notice to terminate the proceedings was served upon him; that very shortly thereafter he paid the reporter the fees necessary to include the documentary evidence; and that the appeal was taken in good faith and with the opinion on his part that errors of law were committed in the trial of the cause. The court denied the motion to terminate the proceedings and thereafter, over similar objections on the part of the plaintiffs, settled the transcript.
[1] There is no longer any doubt that under the circumstances here presented the trial court was not without jurisdiction to relieve the appellant of his default. Section
[3] The opening brief of appellants is not on file, the time therefor having been extended by stipulation. A determination of whether the appeal is frivolous would involve an investigation of the transcript and a conclusion upon the merits of the case which would effect an unwarranted advancement of the case. Upon the authority of Jenks v. Lurie,
Motion denied.
Works, P.J., and Craig, J., concurred. *543