WARD, J., Concurring and Dissenting. I concur in the order of dismissal of the purported appeals from the order terminating proceedings and from the order denying the motion to vacate such order. I dissent from the order of this [434]court denying plaintiff’s motion to dismiss the appeal, and from the order granting defendant’s motion to be relieved of default.
In this matter it is necessary to deal with new rules (Rules on Appeal, adopted by the Judicial Council, effective July 1, 1943). It may be assumed that the purpose in transferring the rule-making power from the Legislature to the judiciary, in the matter of the preparation of the record on appeal, is to facilitate and expedite the business of the court, to accomplish which it is necessary that all parties conform to the new rules. In Murphy v. Krumm, 21 Cal.2d 846, 848-849 [136 P.2d 8], wherein a reasonably strict adherence to the rules of the court is advocated, the court said: “It is argued that regardless of defendants’ delay both in the payment of the fee prescribed for the undertaking of an appeal and in the filing of points and authorities as above detailed, the attendance to these matters prior to the hearing of the motion to dismiss will of itself, justify a denial of the relief sought on this proceeding. While there is a line of decisions in this state supportive of this proposition [citing cases], these cases, by reason of their conflict with the plain language of rule Y of the Rules for the Supreme Court and District Courts of Appeal and its uniform interpretation by this court, are of no avail here.” It should be noted that the decisions in all cases cited in the above paragraph are by the District Court of Appeal and that no petition for .a hearing was filed in the Supreme Court in any of those cases. It was further said in the Murphy case (p. 849) : “That rule has the force of positive law so far as the rights of the parties are concerned. (Brooks v. Union Trust etc. Co., 146 Cal. 134, 138 [79 P. 843] ; Helbush v. Helbush, 209 Cal. 758, 763 [290 P. 18].) The right of the complaining party to a dismissal must be determined by the facts as they exist at the time the notice of motion is given, and it is not destroyed by the mere subsequent filing of the necessary document. (Shain v. People’s Lumber Co., 98 Cal. 120, 122 [32 P. 878]; McCabe v. Healey, 139 Cal. 30, 32 [72 P. 359] ; Raisch Improvement Co. v. Arata, 193 Cal. 573, 574 [226 P. 399].) ”
Rule 53(b) provides that an appellate court may not set aside a default based upon a failure to serve and file a notice of appeal within the time limit. It appears that failure to conform with the requirements of the new rules in other re[435]spects may be excused. There is no method of determining an abuse of discretion by further appeal if the motion is presented direct to the Supreme Court. Remission of the penalty rests entirely in the discretion of the appellate court to which the appeal has been taken, unless there is an abuse of discretion. Nevertheless, this trial function, as distinguished from matters ordinarily within the province of an appellate court, has been imposed upon the justices collectively and individually. Unless the Supreme Court declares to the contrary, it must be assumed that on petition for hearing, after disposition by the District Court of Appeal, the Supreme Court will follow the test heretofore applied by all appellate courts, namely, did the trier or triers of the facts—in this ease, appellate judges—abuse their discretion. The determination of that question rests completely with the Supreme Court. When an appellate division is not unanimous in finding the facts, ordinarily the majority view will be accepted unless there appears a clear abuse of discretion.
A former opinion was filed in this case but the matter was resubmitted on the court’s own motion for the purpose of considering a point not theretofore brought to our attention, namely, the rule announced in Averill v. Lincoln, 24 Cal.2d 761 [151 P.2d 119]. I find that I cannot agree with my associates. My view, irrespective of any previous opinion filed in this matter, is that the appellant has been wilfully negligent in the prosecution of the appeal and I believe it to be my duty to say so.
Averill v. Lincoln, supra, held that the new rules constituted a fundamental departure from the old procedure, and in the course of the opinion said (p. 763): “Fixed periods are specified for the performance of the various steps in preparing the record, and when the allotted time has elapsed the appellant is in default.” After a litigant has had his day in court he should, under the new Rules on Appeal, be held to a reasonably strict performance. If the question presented on appeal or on a motion to the appellate court shows a failure to comply with a strictly jurisdictional or mandatory rule, there is no opportunity to use discretion, as under such circumstances the court of appeal has no power to review the order.
However, settlement of disputed issues and the right of appeal on the law and the facts in accordance with appro[436]priate court rules should be favored. Failure to comply strictly with the rules may be excused in the interest of affording a litigant an opportunity to be heard on appeal. If the failure to comply with the rules is inadvertent, and there is no dispute upon such fact—as in Averill v. Lincoln, supra, wherein a law secretary had been instructed to file an original and serve a copy of a “notice of election to proceed on a settled statement, ’ ’ and the secretary instead of personally serving the copy upon opposing counsel, mailed it, resulting in his receipt of the copy two days late—the violation of the rule may be excused as the Supreme Court held in that case. In my opinion the facts in the Averill case do not even resemble the facts in the present case.
In this case defendant gave notice of appeal. After extension of time by stipulation and order of court she served and filed a notice to prepare a reporter’s transcript, etc., and subsequently received an estimate of cost. She failed to deposit with the clerk an amount of cash equal to the estimated cost, with directions to apply the same to the fees, etc. within ten days of the time she received the estimate. (Rules on Appeal, pt. II, rule 4(c).) Not only did defendant fail within the ten-day period to comply with the rule, but she failed for four months to do so.
Rule 45(b) of the-Rules on Appeal provides that the superior court may grant an extension or extensions of time within which to perform any act in the preparation of the record on appeal in a civil action not exceeding ninety days. If the superior court had the power to grant extensions and had used such power, in this case defendant would still, by thirty days, have exceeded the time within which to make the deposit.
Rule 43 and subdivision (e) of rule 45 provide for extensions of time by a chief justice or presiding justice in his discretion, without notice to opposing party to do any act required or permitted under the rules. . . . The defendant herein, however, is faced with the fact that the record does not indicate that any application was made to the presiding justice.
The excuse offered by defendant' is’ that the attorneys for plaintiff had agreed with her attorneys that they (the attorneys for plaintiff) would not require the preparation of the transcript until “we can go no further to settle this matter.” Whatever agreement was made was oral and at that time re[437]ferred to an. offer by plaintiff to accept less than the amount awarded him by the judgment.
This proceeding might well be referred to as the battle of affidavits, which raises the question of the veracity of the respective affiants. However, it was stipulated that the complete record of any transcript or document on file might be used on the several motions pending. This is fortunate as in this case the appellate court would not be in the advantageous position of the trial court. The trial judge knew practically all affiants as attorneys or witnesses, had observed their conduct in the trial of the case and was therefore in a better position to determine the credibility of opposing affiants.
The trial judge herein, assuming the old statutory rules to be still operative, passed upon similar motions in favor of plaintiff. He did not, as in the Averill case, face an undisputed fact but affidavits covering the same matters as appear on appeal. This court in the majority opinion correctly declares that the trial court did not have jurisdiction to pass upon the matter. The order made by the trial court is invalid but the fact that the proceedings and subsequent events —all of which by stipulation of the parties are made part of the record on all of these motions—show that the trial court definitely determined the question of veracity in favor of plaintiff. Having been made part of the record, this court is at liberty to consider the transcript of proceedings, and the matter of the determination by the trial court of the veracity of the respective parties. I feel that the judgment of the trial court, with the opportunity of observing the various affiants at the trial, is superior to mine. I am also impressed by the record on these motions, which shows that under the terms of the judgment herein plaintiff was entitled to one-half of the money in certain banks; that practically all of the half which is admittedly the property of defendant has been withdrawn, and that plaintiff’s half is still withheld. There appears to be a basis for the statement by the attorney for plaintiff that “the plan of the attorneys and the plan of the defendant is to hold that money there as long as they possibly can, to stall, stall and stall.”
Eliminating any view based upon the opinion of the trial judge or the arguments by respective counsel, in my opinion the plaintiff should prevail on the questioned motions based [438]upon certain circumstances which point the way to the determination of the truth.
Irrespective of the conflict in the facts averred in the affidavits, any agreement between the attorneys, oral or written, extending time to a period beyond the limit permitted by the rules would have been of no legal avail unless defendant obtained an order from a court of competent jurisdiction approving a stipulation between them or a separate order extending the time. In this case no order was obtained. The facts differ from Averill v. Lincoln, supra, wherein the failure to comply with the rules was an inadvertence. Here there appears a reckless disregard of the Rules on Appeal.
It may be suggested that in the present case the attorneys for defendant should be excused because they were not familiar with the new Rules on Appeal. I am sympathetic with them in this respect. It may be assumed that the attorneys for plaintiff also proceeded upon the theory that the old rules were in effect.
The trial judge advised all parties herein that he would strictly enforce the Rules on Appeal. The record shows only one extension of time granted by him. Thereafter an effort to obtain a further extension from the trial judge was met with a denial in form and manner so positive that there does not appear to be any further request for additional time. The trial judge in open court, referring to a telephone conversation with the attorney for defendant “around the first of November, very close thereto, 1943,” said: “He asked me at that time if I would consent or stipulate to any further time, and I stated definitely, emphatically and positively, ‘No.’ ” This period “around the first of November is important. ’ ’
Assuming that the attorney for defendant had been lulled into a sense of security in the belief that it would not be necessary to prosecute the appeal while there was under consideration an offer of compromise made by plaintiff, it is admitted that defendant definitely refused the offer on or about October 30, 1943. From that date on until the early days of March there was no misunderstanding, no lulling of defendant’s counsel into a sense of security about the matter, and proof thereof appears in the telephone request by defendant’s counsel to the court, at or about that period, requesting an extension of time.
[439]An affidavit sworn to by the attorney for defendant and filed in the superior court March 31, 1944, stated that in the “early part of November 1943” he “stated to counsel for the plaintiff, Harry J. Neubarth, that all negotiations were off and that he would ascertain from the official court reporter what it would cost to prepare a clerk and reporter’s transcript and proceed to perfect said appeal.” Defendant claims that immediately after such determination the attorney for plaintiff persuaded her attorney not to proceed further with the appeal, and that he was lulled into a sense of security. However, the record shows that pursuant to the request of such attorney the official court reporter made the requested estimate on November 12, 1943.
Some suggestion has been made that a substantial portion of the transcript has been written. In an affidavit by the court reporter the following appears: “ [T]hat he dictated and transcribed approximately 174 pages of the proposed transcript on appeal in said action, at the request of defendant and appellant’s attorneys at which time he refused to proceed further with the transcript because he was neither paid for such preparation nor were satisfactory arrangements made with him to secure his compensation; that he was paid for the aforementioned dictation and transcription only after repeated demands for payment made upon defendant and appellant’s attorney and only after there had been granted in the trial court a motion to terminate proceedings to obtain the transcript on appeal and after the refusal of the trial court to vacate said order.”
The failure in the present case to comply with the rules, whether under the old statutes and former rules or under the new Rules on Appeal, is not an inadvertence. It shows negligence far beyond mere forgetfulness or carelessness and demonstrates that defendant knew she had forfeited her right to appeal and hoped that some judge would extricate her from that position. In the words of an able, experienced and esteemed justice of the Supreme Court: “While appellate courts are loath to dismiss appeals, without consideration on the merits, for failure to comply with rules of procedure, such rules are essential to the orderly handling and dispatch of the court’s business and create rights which an adverse party is entitled to enforce. (Shain v. People’s Lumber Co., supra [98 Cal. 120 (32 P. 878)], at p. 122; McCabe v. Healey, [440]supra [139 Cal. 30 (72 P. 359) ], at p. 32.) Under the present circumstances a failure to grant plaintiffs’ motion, if not a complete abuse of discretion, would at least constitute an unwarranted disregard of the rule here in point. To uphold and respect such rule defendants’ appeal must be dismissed. (Hoyt v. San Francisco etc. R. R. Co., 87 Cal. 610, 613 [25 P. 160, 1066].)” (Murphy v. Krumm, supra, p. 850.)
Respondent’s petition for a hearing by the Supreme Court was denied May 14, 1945.