Rambo v. Rambo

[633]

BARNARD, P. J.

This is an appeal from an order denying a motion for a new trial made under section 953e of the Code of Civil Procedure.

The action is one for a divorce on the grounds of extreme cruelty, for a division of community property, and for an allowance for support and maintenance. The court found in favor of the plaintiff, allowed her $3,000 from the community property, and ordered the defendant to pay her $60 per month until such payments amount to the sum of $3,000.

An interlocutory decree was entered on June 6, 1946. The defendant’s motion for a new trial was denied on July 29, 1946. A notice of appeal and a request for a transcript were filed by the defendant on August 22, 1946. On August 28, 1946, the defendant filed notice of a motion to vacate the interlocutory decree and for an order granting a new trial under the provisions of section 953e, together with an affidavit in support thereof. ■ A hearing was had on September 3, 1946, and an order was entered on that day denying this motion.

_ The defendant has appealed from this order, contending that the court abused its discretion in denying his motion since he had proceeded in the customary manner, and had acted with promptness when he ascertained that a reporter’s transcript could not be obtained. He relies on

Weisbecker

v.

Weisbecker,

71 Cal.App.2d 41 [161 P.2d 990] and

Fickett

v.

Rauch,

31 Cal.2d 110 [187 P.2d 402]. In the Weisbecker case, an order denying a motion for a new trial based upon the impossibility of obtaining a reporter’s transcript, due to the death of the reporter, was reversed. It was there pointed out that the supporting affidavit contained a full recitation of facts showing the existence of substantial issues and the necessity of a reporter’s transcript in order to present the same to a reviewing court. In the Fickett case the previous cases are cited, and to some extent reviewed, and the general rules are reaffirmed, namely, that the exercise of the power conferred by section 953e is discretionary, that an order denying such relief should not be reversed except for an abuse of discretion, and that whether such discretion has been abused depends upon the facts of a particular case. It is also pointed out in that ease that while an appellant is not required to show facts indicating that a different result would be obtained on a retrial, it is incumbent upon him to make a showing sufficient to indicate substantial issues which are material to the appeal and disclosing both the necessity for a reporter’s transcript and reasonable diligence on his part. It was held