Smith v. Orange Belt Supply Co.

[849]

BARNARD, P. J.

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

A judgment in favor of the plaintiffs was entered on February 20, 1942, the action having been tried by the court without a jury. On April 13, 1942, present counsel was substituted in place of another who had theretofore acted as attorney for the defendant. On April 14, 1942, notice of appeal from the judgment was filed with a request for a transcript as provided for in section 953a, Code of Civil Procedure. On May 11, 1942, and before his transcript had been completed, the stenographic reporter died. Thereafter, a motion for a new trial based upon the impossibility of obtaining a transcript was made and denied by the court. This appeal followed.

It seems to be settled that the granting of a new trial upon this ground is a matter resting in the sound discretion of the trial court, that it is vested with a wide discretion in passing on such an application, and that its action thereon will not be disturbed unless an abuse of this discretion clearly appears.

(Moore

v.

Specialty Oil Tool Co.,

128 Cal.App. 662 [18 P.2d

82]; Conlin

v.

Coyne,

19 Cal.App.2d 78 [64 P.2d 1123];

Kroeker

v.

Jack,

51 Cal.App.2d 272 [124 P.2d 619].) In the first of these cases, in holding that no abuse of discretion was disclosed by the record, it was pointed out that there was nothing to indicate that the evidence would be any different on a new trial or that a different result might be anticipated. It was further pointed out that the fact that the denial of such motion might deprive an appellant, through no fault of his own, of the opportunity of obtaining a review of a judgment against him is not, in itself, a sufficient ground for reversing the order denying a new trial. In