Deward v. La Rue

[60]

PIERCE, P. J.

— Petitioners seek a writ of mandamus to compel C. C. La Rue as County Clerk of Sacramento County "to proceed forthwith with the preparation of the transcript on appeal ’ ’ from a judgment in an action in the superior court of that county. Since none of the steps required by rule 4 of California Rules of Court have been taken, the relief sought cannot be granted. The extent of relief possible is a ruling that the notice of appeal served and submitted to the clerk for filing was, although it contained a misdescription of the judgment appealed from, sufficient, with direction to the clerk to file it as of the date submitted, and to correct the misdescription ; and we can extend petitioners’ time to effect preparation of transcripts. This relief we will grant under the policy of the law that appeals should be heard upon their merits. The facts below will show that both the original misdescription and the failure to make timely correction thereof were through carelessness, which was great. However, the real party in interest was neither misled nor has she been harmed.

In 1963 petitioners filed an action against Helene Rose Clough (real party in interest) and the City of Sacramento.

A summary judgment was granted the city on September 26, 1963. The cause went to trial against Helene Clough and following a jury verdict in favor of Helene Clough judgment was entered on the verdict on January 7, 1965. A motion for a new trial was denied on February 19th.

On March 1st the following notice of appeal was filed: "To the Clerk of the Above-Entitled Court : To the City of Sacramento, Defendant, and its attorneys: McGregor, Bullen & Erich : and to Defendant Helene Rose Clough, and her attorneys: Fitzwilliam, Memering, Stumbos & DeMers :

"You Wll Please Take Notice, that the Plaintiffs herein appeal to the Court of Appeals of the State of California for the Third District from the Judgment entered herein in Department No.-of the above-entitled Court, on the 26th day of September, 1963, in Judgment Book 180, at page 298, in favor of defendant, City of Sacramento, dismissing the Complaint of the plaintiffs herein, and against the plaintiffs, Richard Deward, by his Guardian ad litem, Robert Deward, and Robert Deward, individually.”