Culver v. Culver

California Court of Appeal Jul 11, 1944 No. Civ. 12617Published

Before: Nourse

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Holding. The court dismissed the appeal because the appellant failed to provide a properly certified record, as the clerk's transcript lacked the trial judge's authentication required for evidentiary matters under the applicable statutes.

Issues

Whether an appeal taken prior to the effective date of the new Rules on Appeal requires a record prepared in accordance with the statutes and rules then in effect.
Whether the absence of a trial judge's certificate authenticating documents used in hearings renders the record insufficient for appellate review.

Disposition. dismissed

Quotations verified verbatim against the opinion

“For this reason the appeal from these several orders presents no debatable question.”

“For these reasons the appeal is dismissed.”

NOURSE, P. J.

—In a suit for divorce plaintiff had an in

[146]

terlocutory decree awarding her a divorce and approving a property settlement wherein defendant was obligated to deliver to plaintiff certain personal property and effects. The decree did not settle the dispute between the parties and sometime later the plaintiff cited defendant for contempt for failure to deliver some of the personal property. Upon the hearing the court found that it was impossible for defendant to make certain deliveries and directed him to pay the value of the articles in cash. It also awarded plaintiff additional counsel fees. The property was appraised and payment was tendered but refused by the plaintiff. The court directed plaintiff to enter a satisfaction of the terms of the interlocutory decree relating to the personal property, and vacated the order relating to counsel fees. Later the court denied plaintiff’s motion for additional counsel fees to prosecute her appeals from these orders. The appeal is taken from all these orders.

The respondent has moved for a dismissal of the appeal upon the ground that the record is insufficient. Since the appeal was taken prior to July 1, 1943, the effective date of the new Buies on Appeal, a record prepared in accordance with the statutes and rides then in effect is a prerequisite to a consideration of the appeal. Buie 53(b) of the Buies on Appeal provides that they shall govern the procedure “in all appeals taken on and after their effective date” but that “pending appeals” shall be governed by the statutes and rules theretofore in force “so far as pertains to the preparation and filing of the record on appeal. . . .” Hence, the preparation of the record on the instant appeal is governed by section 953a et seq. of the Code of Civil Procedure, and such of the old rules of court as were applicable at the time the appeal was taken.

One of the essential requirements of the code section was that the clerk’s and the reporter’s transcripts should both be certified by the trial court when the appeal is based upon evidentiary matters, either documentary or oral.

Wynecoop

Superior Court,

Culver v. Culver

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NOURSE, P. J.

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