Walker v. Etcheverry

BARNARD, P. J.—This

is an appeal from an order terminating the proceedings for the preparation of a transcript to be used on appeal and denying a motion made by appellants for relief from default in that regard.

[612]

Judgment was entered on August 7, 1939, and a motion for a new trial was denied on September 6, 1939. On September 16, 1939, the defendants filed a notice of appeal, a notice and demand for the preparation of a transcript, a waiver of undertaking signed by the court reporter, and an order signed by the court directing the clerk to prepare a transcript. A few days later an undertaking on appeal was also filed. On November 30, 1939, the respondents filed a notice of motion to terminate proceedings for the preparation of a transcript, and a few days later the appellants filed a notice of motion for an order granting them relief from any default in connection with the preparation of a transcript. The two motions were heard together, the first being granted and the latter denied, and this appeal followed.

The matter was heard on affidavits submitted by both parties, which disclosed the following facts. The appellants were represented by a firm of attorneys in Bakersfield and another firm in Visalia. One lawyer from each of these firms participated in the trial. The appeal papers were prepared by this Bakersfield lawyer and sent by him to this Visalia lawyer, who secured the necessary signatures and filed the papers. In a letter transmitting these papers the Bakersfield lawyer asked the Visalia lawyer to “orally tell the clerk and the reporter to hold off the actual commencement of preparation for a few days while I attempt to settle the case with Bradley & Bradley”. Instead of strictly complying with this request, the Visalia lawyer told both the clerk and the reporter not to start the actual commencement of the transcript on appeal until notified to start the same by him. On September 16, 1939, this lawyer wrote to the Bakersfield lawyer stating that he had served and filed the notice of appeal and other appeal- papers, but saying nothing about what he had told the clerk and reporter with reference to holding up the preparation of the transcript until further notification from him. On September 18, 1939, the Bakersfield lawyer wrote to the attorneys for the respondents suggesting that the case could be settled if a very substantial reduction in the amount of the judgment was made, and mentioning the legal points that could be raised upon an appeal. Several letters between the respondents’ attorneys and this Bakersfield lawyer followed, the last being one written by the respondents’ attorneys under date of September 27, 1939,