Hohnemann v. Pacific Gas & Electric Co.

KNIGHT, J.

Plaintiffs brought an action for the recovery of damages on account of the death of their monther, who was fatally injured by an explosion of gas. The trial court directed a verdict in favor of the defendant, and judgment was entered accordingly. Plaintiffs took an appeal pursuant to the alternative method provided by section 953a of the Code of Civil Procedure, and in conformity with the requirements of said section filed a request for a transcript. Thereafter defendant moved that the proceedings for the preparation of the transcript be terminated, the ground of the motion being lack of diligence on the part of plaintiffs in prosecuting the proceedings to obtain the transcript. The motion was denied, and shortly afterwards the transcript was duly settled and certified by the trial judge and filed in this court; and subsequently plaintiffs filed their opening brief. In the meantime, defendant took an appeal from the order denying its motion to terminate said proceedings; but the appeal was dismissed on motion of plaintiffs upon the ground that said order was not appealable.

(Hohnemann

v.

Pacific Gas & Elec. Co.,

29 Cal. App. (2d) 551 [85 Pac. (2d) 151].) However, such dismissal was entered without preju

[694]

dice to the right of defendant to proceed by way of motion for the dismissal of plaintiffs’ appeal, and to use as the basis therefor the record upon which defendant had taken its ineffectual appeal. Such a motion was made, and is now before this court for determination.

As to the law governing a proceeding of this kind, it is well settled that when, as here, an appellant has complied with the jurisdictional requirement of said section 953a by filing the notice and request mentioned therein, and it is claimed by the respondent that on account of lack of diligence on the part of the appellant or the court officers, or for any other cause, there has been unreasonable delay in procuring the transcript, the respondent’s only remedy is by way of motion in the trial court to terminate the proceedings for the preparation of the transcript; that neither by statute nor court rule is there any mandatory provision prescribing a limit to the time within which the transcript is to be prepared, and that the determination of the question of whether the delay complained of has been unreasonable or is justifiable is committed very largely to the discretionary power of the trial court, which power should be liberally exercised against terminating the proceedings for the preparation of the transcript; and that whether the' trial court grants or denies the motion therefor, its decision in the matter will not be disturbed by a reviewing court unless it clearly appears from the record upon which the trial court’s decision is based that its discretionary power has been abused; also that it is seldom that the facts of any particular case can be used as a precedent for the determination of another proceeding of like character.