Berg v. Journeymen's Plumbers & Gas Fitters Union

SPENCE, J.

In the above-entitled action, a judgment was entered in favor of defendants on August 15, 1933. In April, 1934, plaintiff made a motion “for an order directing the clerk of the court to receive and file a copy of the notice of appeal herein and to mark the same as having been filed on or about the 4th day of November, 1933”. The trial court made its order denying said motion and plaintiff appeals from said order.

Appellant contends that the affidavits offered in support of said motion were uncontradicted and that the trial court therefore erred in denying said motion. We find no error in the trial court’s ruling. The affidavits presented, although uncontradicted, were most unsatisfactory in character and the trial court could properly consider the character of the evidence presented therein when ruling upon the motion. (Code Civ. Proc., see. 1847.) Two affidavits were presented. The affidavit of counsel merely stated that “to the best of affiant’s recollection, knowledge and belief, affiant filed said notice of appeal in the office of the clerk of the above entitled court on or about the said 4th day of November, 1933”. It will thus be seen that said affidavit was not positive in its terms as to either the fact or time of filing. It further appeared from said affidavit that affiant could find no office copy of said notice of appeal; that affiant had “no present recollection as to the name of the deputy clerk with whom affiant filed said notice of appeal”; and that “no notice of appeal was on file in said papers or entered on said register of actions”. The affidavit of the stenographer for counsel merely stated that she had been instructed to prepare a notice of appeal and “that affiant remembers preparing said notice of appeal and remembers transcribing the same”. She also alleged her

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inability to find “the office copy” after diligent search. There was no statement in said affidavit as to when she prepared said notice or what disposition she made thereof.

Appellant’s contention that the trial court was bound, in the absence of counter-affidavits, to find that the notice of appeal had been filed, cannot be sustained. There was no positive statement in said affidavits to show that said notice of appeal had ever been filed. On the contrary said affidavits were vague, indefinite and uncertain in several respects, and many of the circumstances set forth therein including the failure to find an office copy, the inability to state the date of filing or the person with whom filed, and the fact that there was no record of filing in the clerk’s office, all tended to cast doubt upon appellant’s claims.