110 Cal. 587 | Cal. | 1895
This is a motion to dismiss an appeal upon the ground of failure to file the printed transcript .
Appellants seldom invoke the provisions of the rule of court heretofore referred to, and, as a consequence, the true construction thereof has never been a question presented for decision. But they are often desirous of delay in the decision of questions pending upon their appeals, and it is plainly apparent that, if we should indorse the practice here adopted as one justified by the rule, grave abuses would inevitably result, and the delays in litigation be more aggravated. We think the rule should be strictly enforced, that it should be obeyed as written, and, when it says that the funds necessary to pay for the printing of the transcript should accompany it, when transmitted to the clerk of this court, the provision should be upheld, and a compliance therewith demanded. With funds in hand, the clerk has the means, and also the opportunity, to have the work done promptly and well, and work which the appellant’s attorneys were in this case more than forty days in hav
While the motion to dismiss the appeal and the printed transcript were filed upon the same day, none of appellant’s rights were saved thereby, for by rule V of this court the filing of the transcript can only defeat the motion when it is filed before the notice to dismiss is served, and such was not the fact in this case. (Carter v. Paige, 77 Cal. 64; Chapman v. Bank of California, 88 Cal. 419.) Again, it is contended that the printed transcript was in the office of Wells, Fargo & Co., in transit to the clerk of this court for filing, when the motion to dismiss was served, and- for that reason the motion should be denied. Placing the document in the office of Wells, Fargo & Co. was not the equivalent of filing, and it cannot be considered as filed when so placed. The principle declared in Hanson v. McCue, 43 Cal. 178, does not go to such lengths.
It thus appears that appellant has no legal ground upon which to stand in combating this motion of respondent, and, therefore, the only question to be determined is, Are the facts shown in the affidavit on behalf of the appellant sufficient to excuse his failure to file the printed transcript ? Upon consideration we have arrived at the conclusion that they are sufficient. When we consider the understanding had between the clerk of this court and appellant’s attorney as to how and when the transcript should be printed, and that the attorney proceeded under such understanding, and had the transcript printed without unnecessary delay, as far as any direct showing to the contrary is concerned; when we consider that the clerk, although without any authority to do so, in effect waived the payment of the funds provided for by the rule, and that the rule has never here
For the foregoing reasons the motion to dismiss the appeal is denied.
McFarland, J., Van Fleet, J., Harrison, J., Temple, J., and Henshaw, J., concurred.