Averill v. Lincoln

California Supreme Court Aug 22, 1944 No. L. A. Misc. 45Published

Before: Gibson

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Holding. The appellate court has the authority under Rule 53(b) to grant relief from a procedural default in the preparation of a record on appeal, provided the default is not a failure to file a timely notice of appeal. The trial court lacks the power to terminate proceedings for a record based on such defaults, as that authority is reserved for the appellate court.

Issues

Whether the failure to serve a notice of election to proceed on a settled statement within the time required by Rule 7(b) is a jurisdictional defect.
Whether the trial court or the appellate court has the authority to grant relief from default in the preparation of a record on appeal under the new Rules on Appeal.

Disposition. Appellants relieved from default; trial court orders vacated; appeals from orders dismissed.

Quotations verified verbatim against the opinion

“The reviewing court, having obtained jurisdiction by the filing of a timely notice of appeal, may grant relief, upon a proper showing of excuse, to a party who has violated a procedural requirement.”

“The appellate court alone has power to grant additional extensions of time and to relieve from default.”

“Appellants are relieved from their default in failing to serve the notiee of election to proceed by settled statement”

GIBSON, C. J.

This is an application by appellants, under rule 53(b) of the Rules on Appeal, for relief from default occasioned by their failure to comply with that provision of rule 7(b) which requires service, as well as filing, of a notice of election to proceed on a settled statement on appeal.

These consolidated actions, seeking removal of a trustee, cancellation of instruments, injunction, damages and other relief, were tried before Judge Benjamin J. Scheinman. The trial covered a period of three months, consuming fifty-six court days. Judgment was entered for plaintiffs on August 20, 1943, just prior to the time Judge Scheinman left the bench to go into active service in the Army of the United States. A motion for new trial was heard and denied by Judge Charles S. Burnell. Appellants filed their notice of appeal from the judgment on November 9, 1943, and elected to proceed on a settled statement. (See rule 7, Rules on Appeal.) On November 18, 1943, which was within ten days after the filing of the notice of appeal, appellants filed a written notice of their election to proceed on a settled statement. They neglected, however, to

serve

the notice of election on the respondents within such ten-day period, as required by

[763]

rule 7(b). On December 16, 1943, Judge Emmet H. Wilson, upon application, extended to January 15, 1944, appellants’ time to prepare and file the proposed statement on appeal. Within such extended period, and on January 13,1944, appellants served on respondents a copy of their proposed statement and a copy of the judgment roll and filed the original with the clerk. Included therein was the notice of election to proceed on a settled statement. Twelve days later respondents noticed a motion to strike the proposed statement on the ground, among others, that the notice of election to proceed on a settled statement was not served within the time required in rule 7(b). In the interim, and before the motion to strike came on for hearing, respondents’ time to serve and file objections and amendments to the proposed statement was extended to March 3, 1944. The motion to strike the proposed statement was heard and granted by Judge Wilson on February 2, 1944. Respondents subsequently moved to terminate proceedings for a record, which motion was also granted.

Averill v. Lincoln

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GIBSON, C. J.

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