Heatly v. Heatly

[678]

BARNARD, P. J.

This is a motion to dismiss an appeal arising out of an action to quiet title to real property. The action was brought on June 11, 1946, and an affidavit was filed showing personal service on the defendant on July 1, 1946. The default of the defendant was entered on August 1, 1946, and an order for judgment and a decree quieting title in the plaintiff were filed on August 5, 1946.

On January 30, 1947, the defendant filed notice that on February 3, 1947, she would move to set aside her default and the judgment and for permission to file an answer and cross-complaint, the motion to be based on the ground that summons had not been served upon her.

On February 3, 1947, the motion was continued for hearing to April 1, 1947, with the rights of the parties to be reserved as if the motion were made and heard on February 3. In the meantime other parties who had purchased the land in reliance on the judgment and the Kings County Abstract Company, which had issued a Policy of Title Insurance thereon, filed complaints in intervention.

The motion was heard on April 1, 1947, both documentary evidence and oral testimony being received. The matter was submitted on briefs and on May 20, 1947, the court denied the motion on the grounds that a valid service of process had been made on the defendant and that the motion, if considered as made on February 3, 1947, was not made within six months after entry of the default. (See

Bowman

v.

Bowman,

29 Cal.2d 808 [178 P.2d 751].)

This appeal was taken from that order, notice of appeal being filed on June 13, 1947. However, a notice to the clerk to prepare a transcript was not filed until July 10, 1947. The appellant was notified of the clerk’s estimate of the cost of preparing the transcript on July 17, 1947, but no arrangement for the payment of these costs was made until September 15, 1947. The clerk’s and reporter’s transcripts were then prepared and were filed in this court on November 17, 1947.

On December 9, 1947, the respondents filed notice of motion to dismiss this appeal on the ground that a notice to prepare a transcript was not served and filed within 10 days after filing the notice of appeal, as required by rules 4(a) and 5(a) of the Rules on Appeal, and that arrangements had not been made for the payment of the cost of such transcripts within 10 days after notification of the clerk’s