Golden Arrow Mines, Inc. v. Hickman

THE COURT.

This is an appeal from an

ex parle

order terminating proceedings taken to perfect an appeal from a judgment.

We have before us a clerk’s transcript on appeal, which contains a notice of appeal filed July 7, 1937, from a judgment rendered on June 21, 1937, in favor of Golden Arrow Mines, Incorporated, et al., as defendants, the appellants here.

The notice of appeal, among other things, contained a request that a transcript of the testimony be prepared and stated that arrangements had been made personally with the court reporter for her compensation in preparing the record. An affidavit from the court reporter, is contained in the transcript denying that any such arrangement had ever been made. On September 7, 1937, a motion to terminate the proceedings to perfect the appeal was filed in the trial court based upon the grounds, first, that appellants had failed to order a transcript within the time or manner required by law. Secondly, that appellants had failed to comply with section 953a of the Code of Civil Procedure relating to the taking of an appeal in lieu of a bill of exceptions. Thirdly, that appellants had failed to comply with section 650 of the Code of Civil Procedure in that no bill of exceptions had been filed or served within the time required by law. Fourthly, that appellants had failed

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to comply with section 953b of the Code of Civil Procedure, pertaining to an undertaking for costs of the transcript, and fifthly, that appellants had failed to file any notice of appeal within the time required by law. This motion is supported by an affidavit reciting in general terms that defendants had failed to comply with the various provisions of the code, and had made no demand for a transcript of the record.

Upon this notice of motion to terminate the proceedings, and the affidavit, and also upon the proceedings, records and files in the cause, together with the minutes of the court and the notes of the court reporter, the motion was granted,

ex parte

and the proceedings were dismissed, and on September 15, 1937, this appeal from that order was taken. Due to the fact that neither counsel nor the court have been able to find authorities bearing upon this question, we have been compelled to view this matter largely as a proceeding of first impression.