16 P.2d 341 | Cal. Ct. App. | 1932
Following the filing of the remittitur after affirmance of judgment on the merits in the above-entitled cause (McIntosh v.Funge,
The trial court proceedings took place in the superior court in and for the city and county of San Francisco. The notices of appeal were filed on January 8, 1931, shortly after the orders appealed from were made; and defendant proceeded to take both appeals by way of bills of exception, which eventually were prepared, settled and certified in accordance with the provisions of section 650 of the Code of Civil Procedure. The bill upon which the appeal was taken from the order of substitution of parties was settled, certified and filed on January 28, 1931, by the Honorable E.P. Mogan, who heard and determined the motion therefor; and the bill upon which the appeal from the order taxing costs was taken was settled, certified and filed on October 27, 1931, by the Honorable James G. Conlan, who heard and determined that proceeding. In the meantime and on July 1, 1931, which, as will be noted, was approximately six months after the notices of appeal were filed, appellant filed with the clerk of the trial court a request to prepare transcripts on appeal pursuant to the alternative method provided by section 953a of the Code of Civil Procedure, in which request appellant specified the documents and papers the transcript should contain, "including defendant's proposed bill of exceptions and plaintiffs' proposed amendments thereto and all orders of the court thereon"; and on November 4, 1931, he applied for an extension of time to prepare and file such transcript, which extension was denied. Notwithstanding such denial appellant on December 15, 1931, filed with the clerk of the trial court a purported (typewritten) transcript, but which did not contain a copy of either of the bills of exception theretofore certified and filed as aforesaid. The clerk of the *613 court noticed said transcript for settlement before the court on December 15, 1931, and the matter came on for hearing on December 22, 1931, before Judge Conlan, at which time he refused to approve, sign or certify the purported transcript upon the following grounds: "1st. That the said Superior Court has now no jurisdiction in said matter after the certification of the said engrossed bill of exceptions, as aforesaid; 2nd. That the said W.W. Funge, Jr., defendant herein, has perfected his appeal by proceeding under section 650 of the Code of Civil Procedure, and having failed to file a request for a transcript under Section 953a C.C.P. is now foreclosed from perfecting an appeal under said section 953a C.C.P.; 3rd. That the said defendant has not filed herein a request for transcript under section 953a C.C.P. within the time allowed by law and is not entitled to a transcript on appeal under section 953a C.C.P.; 4th. That the appellate tribunal is the proper tribunal in which to apply for time to prepare and file the Clerk's transcript on appeal which accompanies the engrossed bill of exceptions as certified by the trial Court." Defendant then asked permission to withdraw the transcript, but the court denied such permission and directed that the same remain on file with the clerk. Subsequently, however, and without notice to respondents' attorneys, appellant presented the purported transcript for certification to the Honorable Lile T. Jacks; the presiding judge of said superior court, who had neither participated in the trial of the action nor in the determination of either proceeding out of which the appeals arose; and on December 24, 1931, without notice to respondents' attorneys, he signed and attached to the purported transcript a certificate in limited terms reading as follows: ". . . I have examined the foregoing Clerk's Transcript and find the same to be a full, true and fair transcript of the papers filed in the office of the Clerk on and after the 28th day of November, 1930; and also of the judgment as recorded on the 31st day of July, 1928 in Volume 281 at page 212 in the Book of Judgments in the Clerk's office in the City and County of San Francisco, State of California; and of the minute orders of the court; that said papers relate to the appeal of the defendant herein to the District Court of Appeal of the State of California, First Appellate Division, dated January 8, 1931." On December *614 28, 1931, said purported transcript was filed with the clerk of this court, and it is the only transcript filed in furtherance of either appeal.
[1] From the foregoing it will be seen that after proceeding to take the appeals by way of bills of exception and after having one of said bills settled, certified and filed, appellant proceeded to take the appeals anew pursuant to the alternative method set up by section 953a of the Code of Civil Procedure. Even assuming for the moment, as appellant contends, that this may be done, it is evident that the purported transcript filed herein as a result of such subsequent proceedings was neither prepared, settled, approved nor authenticated in the manner prescribed by said code section for the following reasons: Said section declares that the request for the transcript must be filed with the clerk within ten days after notice of the entry of the order from which the appeal is taken; and here said request was not filed for more than five months after the notices of appeal were filed. [2] True, the failure to file such request within the time prescribed is not jurisdictional to the appeal (Lynch v. Coe,
Therefore, since it affirmatively appears that said transcript was not settled, approved or certified in the manner prescribed by the statute and does not purport to contain a full, true and fair transcript of the proceedings had at the hearing of said motions, nor of the testimony taken or evidence adduced thereat, the same cannot be allowed to serve as the record on the appeals. Accordingly the appeals are dismissed and the orders are affirmed.
*616Tyler, P.J., and Cashin, J., concurred.