Stenzel v. Kronick

255 P. 199 | Cal. | 1927

The plaintiff and respondent herein has moved this court to affirm the judgment in his favor, from which this appeal has been taken, upon two grounds: (a) That no sufficient record is before the supreme court upon which said court can predicate error; (b) that no sufficient record on appeal in this case has been printed in appellant's brief.

[1] The facts upon which the respondent predicates his motion are these: The judgment herein in plaintiff's favor was made and entered on December 19, 1923. Notice of entry of said judgment was served upon attorneys for the defendant on December 29, 1923. The defendant's notice and demand for the preparation of the transcript was filed with the clerk of the trial court on January 16, 1924, sixteen days from and after the time of the receipt of the notice of entry of judgment. The transcript on appeal was presented to the trial court for certification under the provisions of section 953a of the Code of Civil Procedure on February 23, 1924. The bill of exceptions discloses that the plaintiff appeared in the trial court and objected to the certification of the transcript upon the ground that the defendant's notice to the clerk to prepare the same had not been given within ten days after notice of entry of judgment. While it does not appear that the defendant in response to said objections made a formal motion for relief from his default under the provisions of section 473 of the Code of Civil Procedure, it does affirmatively appear therein that the trial judge "exercised his discretion in favor of certifying said transcript" and thereupon made an order that the same be settled, allowed, and certified as and for the bill of exceptions in said cause.

The respondent in support of the first ground urged upon his motion chiefly relies upon the decision of this court in the case of Des Granges v. Des Granges, 175 Cal. 71 [165 P. 13]. The appellant in resisting the motion cites and chiefly relies upon the case of In re Barney, also decided by this court and reported in 191 Cal. 18 [214 P. 853]. In the case of DesGranges v. Des Granges, supra, this court held that the action of the trial court in certifying to the record in that case was erroneous; but in so holding the court expressly stated that "it does not appear that the plaintiff at the hearing or at any other time asked for any relief under section 473 of the Code of Civil Procedure, or attempted to offer any explanation to excuse her failure to comply with the provisions of section 953a There was presented in fact no opportunity for the exercise of any discretion by the court." In the case of Inre Barney, supra, on the other hand, it appeared that while the defendant made no formal application for relief under section 473 of the Code of Civil Procedure, she appeared at the time of the certification thereof and stated certain reasons going to excuse her default, and that thereupon the trial court exercised its discretion and by certifying to the transcript, in effect, relieved the appellant from her said default. In the case ofRubin v. Platt Music Co., 79 Cal.App. 756 [251 P. 243], that court in commenting upon an identical situation held that when objections to the certification of the transcript were presented in the trial court and the transcript was thereafter settled and certified to by it, such settlement and certification was the equivalent of relief from the default. We are of the opinion that these two later cases have more immediate application to the instant proceeding than has our former decision in the case of Des Granges v. Des Granges, supra. Herein the trial court has expressly stated that it exercised its discretion in the settlement and certification of the transcript after the respondent's objection thereto had been urged. The only subject upon which the trial court under such circumstances would be called upon to exercise its discretion would be that of relieving the defendant from his said default, and while it does not affirmatively appear herein that the defendant formally applied for such relief, or even that he presented adequate excuses, nevertheless we are of the opinion that it sufficiently appears that he was granted relief from his default under the power of the court so to do, given in section 473 of the Code of Civil Procedure. Respondent's motion upon his first ground urged should therefore be denied.

[2] As to the second ground urged for the granting of said motion, an inspection of the record discloses that the appellant herein has appended to his opening brief a supplement of more than one hundred pages, largely devoted to excerpts from the evidence in the case. In so doing we think he has shown a sufficient compliance with the requirements of the code in that particular to justify a denial of the respondent's motion also upon this ground.

The motion to affirm the judgment upon both grounds is therefore denied.

Shenk, J., Seawell, J., Preston, J., Curtis, J., Langdon, J., and Waste, C.J., concurred.