Baum v. Vanatta

BARNARD, P. J.

The respondents have moved to dismiss this appeal on the ground that the notice to the clerk to cause a transcript on appeal to be prepared and filed was not given or filed within ten days after the denial of a motion ’for a new trial, as required by section 953a of the Code of Civil Procedure. It appears that notice of entry of judgment was served and filed on May 9, 1934, that a notice of intention to move for a new trial was filed on May 17, 1934, that said motion was never acted upon and was denied by operation of law on July 8, 1934, that notice to the clerk to prepare a transcript was filed on July 25, 1934, and that objections to the settlement of the transcript on appeal were overruled and the transcript was approved on September 18, 1934. It is not contended that any notice of the termination of the proceedings for a new trial was given to the appellant and both a clerk’s transcript and a reporter’s transcript were on file in this court at the time notice of this motion was filed.

The respondents contend that where a motion for a new trial is denied by operation of law, the appellant is deemed to have notice and the time. for requesting the preparation of a transcript begins to run at the end of the statutory period within which a motion for a new trial might have been granted and that, under the facts here appearing, the transcript which has been filed may not be considered.

In support of this contention the respondents rely particularly upon

Hughes

v.

DeMund,

195 Cal. 242 [233 Pac.

[397]

94],

McArthur

v.

Paxton,

39 Cal. App. 608 [179 Pac. 521], and

Bernschein

v.

Whitaker,

175 Cal. 130 [165 Pac. 523]. While these authorities support the contention here made, the supporting statement in the opinion in