Whelpton v. Taylor

ADAMS, P. J.

This is a motion to dismiss an appeal on the ground that appellant failed to make arrangements with the clerk of the lower court for payment for the clerk’s transcript within the time provided by the Rules on Appeal.

Notice of motion to dismiss was filed in this court on September 4, 1947, and October 2d was set as the hearing date. The notice was served upon counsel for appellant by mail, same having been posted in Los Angeles on September 2, 1947, addressed to appellant’s counsel at Long Beach.

Movant’s motion to dismiss is supported by a certificate of the clerk of the lower court which shows that judgment for defendant Roland M. Taylor, as administrator of the estate of E. F. Stella, deceased, against cross-defendant Marsden Whelpton, quieting title to certain real property, was entered April 26,1946, and that a judgment was entered on plaintiff’s complaint in favor of defendants on June 28,1946; that on or about July 25, 1946, Whelpton filed a notice of motion to set aside both judgments, which motion was denied September 6, 1946; that Whelpton filed notice of appeal on September 28,

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1946; that he did not, however, make arrangements with the clerk for payment of the clerk’s transcript, and had not done so at the date of said certificate which was May 28, 1947; that more than 10 days had elapsed since he had been notified, on February 5, 1947, of the clerk’s estimate of the cost of preparing the transcript; and that no extension of time had been granted.

On October 1, 1947, Arthur 0. Fisher, attorney for plaintiff and appellant, Marsden Whelp ton, filed in this court an affidavit made on September 30, 1947, in which he set forth that on January 29, 1947, he received from the clerk of the lower court a notice of estimate of cost of clerk’s transcript on appeal, copy of which he attached to his affidavit, and which fixed the clerk’s estimate at $15; that he mailed his check for that amount to said clerk on January 30, 1947, and that said check was cashed by said clerk. His affidavit, however, further avers:

"That affiant has just found in the file of the above-entitled action a subsequent communication from said County Clerk, a copy of which is hereto attached and expressly made a part hereof as though fully set forth herein and is marked 'Exhibit IV. ’ That affiant had not previously seen said communication, and has now transmitted to said County Clerk the sum of $20.00 mentioned in said communication, as being due on the revised estimate.”